L. Ian MacDonald has an interesting article in today's Montreal Gazette (hat-tip Norman's Spectator) regarding the notwithstanding clause. PM Martin is trying to gain some separation from MP Harper by claiming that MP Harper wants to use the Notwithstanding Clause (Harper claims he doesn't need it) and if does PM Martin will trigger an election to protect the Charter.
As Mr. MacDonald claims this is a bit of semantic nonsense, since the notswithstading is part of the charter.
...Ah, Paul Martin, fearless champion of the Charter. Apparently, he doesn't understand the charter. Not only is the notwithstanding clause part of it, there would be no charter without it. The premiers of the day, in 1981, would never have agreed to the charter unless Pierre Trudeau accepted the constitutional override. It is meant to be used only infrequently, and must be renewed every five years. But like the federal power of disallowance, unless it is used, it will fall into disuse.
This disuse may be the point, from the Liberal point of view. I was watching Politics on CBC last night and one of the guests (sorry, can't remember his name, but he is a freelance columnist with the Toronto Star) claimed that it was time to eliminate the notwithstanding clause.
...Harper has a two-part strategy, first to embarrass Martin on the issue of a free vote, and then to divide the Liberal caucus. Martin makes much ado about the democratic deficit, but he's a hypocrite on this in forcing his cabinet to vote with the government.
...Then, Harper wants to propose an amendment to the legislation affirming equality rights in same-sex unions, while upholding the traditional definition of marriage. While 134 constitutional professors sent Harper a letter pointing out he would have to use the override to pass his amendment, they missed the point this is now a political debate, not a constitutional one, and the Conservative leader's goal is to turn up the heat inside the Liberal caucus. His amendment will do exactly that.
But he should be careful not to overplay his hand. Quite simply, he should let the Liberals wallow in a mess of Martin's own creation. In speculating about polygamy, he took the spotlight off the government, and shone it on himself, opening himself to Martin's accusations of extremism. If there is one thing Harper should have learned in the campaign, it's that Martin will say, and do, anything to retain power.
As for the notwithstanding clause, the cardinal makes a good and interesting point, about using it for a period of cooling off and reflection.
The father of the charter himself, Trudeau, affirmed the legitimacy of the notwithstanding clause, and promised to use it if necessary to prevent abortion on demand. In a private letter to Cardinal Emmett Carter on Dec. 21, 1981, Trudeau wrote: "Should a court decide at some future date that Section 7 (the right of women to security of the person) or 15 (equality rights), establish a right to abortion on demand, Parliament will continue to legislate on the matter by overriding the court's decision and the specific Charter right."
