Federalism and the judiciary

1. Federalism and the judiciary Nathalie Des Rosiers Dean, Civil Law University of Ottawa, Canada

2. Outline A - The characteristics of a good « final arbiter » of juridictional challenges • Legitimacy • Impartiality • Appropriate procedural safeguards B – The issues facing a good final arbiter of juridictional challenges Complexity Certainty vs flexibility Final concluding remarks : rights disputes vs. Juridictional disputes

3. Why are we concerned about the role of the judiciary in federalism? • In a federation, there will be a need for a final arbiter in a dispute over which level of government has the power to act in a particular case- • The judiciary is appropriate choice for this final arbiter provided that it has the following characterisctics: legitimacy, impartiliaty and operates with procedural and legal guarantees to ensure that it can and will continue act with these qualities.

4. Legitimacy • The primary role of a tribunal is to be the Guardian of the Constitution; to be in a position to the fiduciary of all the hopes, the compromises of the different groups that came together to unite in a federal state. • People and government must respect the decisions of the courts.

5. Legitimacy • Process of appointment must be seen to be legitimate : important characteristic in order to add « credibility » to the process. • In some cases, regional representation on the final court was seen as necessary – • - ex. Québec 3 judges / women’s represntation / all regions are represented • Impeccable Reputation of the judges appointed (discipline ensured by the judges themselves s a group) • Not only at the upper level but throughout : independence, salary and security of tenure. • Fostering a sense of high responsibility

6. Impartiality • Impartiality is what confers legitimacy • However, impartiality is not to have no opinions or no identity but rather to have an open mind to Hear and understand the arguments of all parties.

7. Legitimacy is earned • Responsiblity of the government and of the court to reflect constantly on the maintaining legitimacy • Only way to ensure respect for the laws.

8. Procedural guarantees • Different forms of juridictional adjudication • a citizen debates whether the government ( state or federal) had the jurisdiction to enact a particular statute • Governments ( state or federal) want to know whether their legislation or another government’s is legitimate ( reference) • Both types of juridictional adjudication demand procedural safeguards

9. The procedural aspects • Notice to the Attorney generals of all provinces and the federal government • Possibility for other groups to intervene in the dispute

10. The process • Pleadings (written arguments, evidence) • Sharing in advance of the arguments so parties can prepare and react • Hearing that is free of violence and respected as process

11. The decision • Must acknowledge the positions of the parties – they have to feel they have been heard • Certainty vs flexibility • Courts can frame the dispute for parties to negotiate better • Principles of federalism must be explained • Cours as teachers • Must be an explanation , • Tension between constitution as a living document ( adapt to the circumstances) and reflecting the original deal

12. Complexity • Complex issues as problems cannot be addressed without cooperation of all actors; • All levels may be empowered to address part of the issue, there may be overlap (a constitution usually provides a rule for such conflicts) but courts can be asked to determine whether there is a real conflict

13. Conclusion • Important role because even if both levels of government must discuss, co-operate and share information, the possibility of having a plce to resolve disputes creates a helpful framework; • Role of interpreting a constitution ( federalism and human rights) in constantly changing contexts is the training of courts. That is what they do