Peace, order and good government: Wikis

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In many Commonwealth jurisdictions, the phrase "peace, order and good government" is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Parliament and Letters Patent, most notably the constitutions of Canada, the Commonwealth of Australia and, formerly, New Zealand.

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In Canada, "peace, order and good government" (in French, "paix, ordre et bon gouvernement"), often abbreviated POGG, is often used to describe the principles upon which that country's Confederation took place. Originally used in the British North America Act, 1867, enacted by the Imperial Parliament, it defines the principles under which the Canadian Parliament should legislate. Specifically, the phrase appears in section 91 of the Act, which is part of the block of sections that divide legislative powers between the federal and provincial levels of government. In section 91, the phrase describes the legal grounds upon which the federal government is constitutionally permitted to pass laws that intrude on the legislative purview of the provinces.

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Interpretation doctrines

In various cases, Canadian courts have found different functions for POGG. These include its residuary power; the text of section 91 allows Parliament to legislate "in relation to all matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces." Hence, when courts examine a jurisdictional dispute over something, if that thing is not specified as falling under provincial jurisdiction, the presumption is that the federal government may regulate it.

Emergency powers

However, this residuary function has not been the only effect of POGG. Canadian courts have also ruled that it is from POGG that the Canadian Parliament may legislate and invoke emergency powers. This began in 1882, when the Judicial Committee of the Privy Council (then the supreme authority over Canadian law) ruled in Russell v. The Queen that the federal government could legislate with regard to alcohol, because even though this would probably have been considered provincial jurisdiction in ordinary circumstances, the federal government was acting to ensure order in Canada. This concept further evolved during the 1920s, when in the 1922 case Board of Commerce, it was stated that POGG could be invoked in times of war and famine, to allow Parliament to intervene in matters of provincial jurisdiction. POGG was later used this way in the Anti-Inflation Reference of 1976, when the Supreme Court of Canada allowed Parliament to regulate inflation on the grounds that it posed a considerable economic problem for Canada. In this case, a great degree of deference was exercised in accepting what the federal government deemed to be an emergency.

National dimensions

The "national dimensions" (originally called "national concerns") doctrine was an alternate means of applying the POGG powers that found use in the mid 20th century. It allowed Parliament to legislate on matters that would normally fall to the provincial government when the issue became of such importance that it concerned the entire country.

The doctrine originated from a statement by Lord Watson in the Local Prohibition case, wherein he stated:

Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the Dominion.

After this case the doctrine was completely ignored until 1946 when Viscount Simons brought it back in the case of Ontario v. Canada Temperance Foundation, [1946] A.C. 193 (P.C.). The test as stated in Temperance Foundation was whether the matter "goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole".[1]

Sociological value

Despite its technical purpose, the phrase “peace, order and good government” has also become meaningful to Canadians. This tripartite motto is sometimes said to define Canadian values in a way comparable to “liberté, égalité, fraternité” (liberty, equality, fraternity) in France or “life, liberty and the pursuit of happiness” in the United States. Indeed, peace, order and good government has been used by some scholars to make broad characterizations of Canada's political culture. US sociologist Seymour Martin Lipset, for example, contrasted POGG with the American tripartite motto to conclude Canadians generally believe in a higher degree of deference to the law.[2]

Elsewhere in the Commonwealth

The phrase "peace, order and good government" appears in many 19th and 20th century British Acts of Parliament, such as the New Zealand Constitution Act 1852, the Colonial Laws Validity Act 1865, the British Settlements Act 1887, the Commonwealth of Australia Constitution Act 1900 and the West Indies Act 1962.

In Ibrelebbe v. The Queen [1964] AC 900, 923, the words "peace, order and good government" contained in the Ceylon Constitution Order-in-Council (1946) were said by the Privy Council to

"connote, in British constitutional language, the widest law-making powers appropriate to a sovereign".

However, those powers are not unlimited. In The Trustees Executors and Agency Co. Ltd v. Federal Commissioner of Taxation (1933) 49 CLR 220, 234, Justice Evatt of the High Court of Australia stated that when deciding whether a law was validly made:

"The correct general principle is... whether the law in question can be truly described as being for the peace, order and good government of the dominion concerned."

Recently, in R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult [2000] EWHC 413, the High Court of England and Wales struck down an ordinance made in 1971 by the Commissioner of the British Indian Ocean Territory expelling the entire population of the Chagos Archipelago in order to make way for an American military base at Diego Garcia, purportedly under his power to legislate for the "peace, order and good government" of the territory. Lord Justice Laws, ordering the British Government to allow the inhabitants to return to their former homes, condemned the depopulation of the islands in the name of "peace, order and good government" with the words:

"It was Tacitus who said: They make a desert and call it peace - Solitudinem faciunt pacem appellant (Agricola 30). He meant it as an irony; but here, it was an abject legal failure."

See also

Notes

  1. ^ p. 205
  2. ^ Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000.

References

  • Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000.

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