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Justice Rosalie Abella

Justice Abella is Wrong to Prioritize Human Rights Over the Separation of Powers

In a recent commencement address at Brandeis University, Justice Rosalie Abella of the Supreme Court took a stab at President Donald Trump. Decrying “narcissistic populism,” Justice Abella argued that a “shocking disrespect for the borders between power and its independent adjudicators like the press and the courts” defines the modern era.  This isn’t her first foray into political terrain. Last year, after receiving an honorary degree at Yale University, Justice Abella  urged courts to enforce human rights values, noting that judges are “better to court controversy than to court irrelevance.” In previous comments, Justice Abella argued that “the rule of justice,” not the rule of law, is central to this project. Taken together, to Justice Abella, human rights and courts are two sides of the same coin.

While Justice Abella’s desire to curb populism is certainly understandable (though it was arguably inappropriate for a sitting justice of the Supreme Court of Canada to attack the current President of the United States), her prescription for this problem is exactly backwards.

The sure way to guard against creeping populism is not by appealing to the amorphous concept of human rights, but rather by reaffirming our core commitment to the rule of law, and, in particular, the separation of powers. The terms “separation of powers” and “rule of law” are subject to definitional debate. But the core meaning of each is clear. The rule of law means that all persons, including state actors (judges are not exempt), are subject to the same law and are bound by it. The separation of powers follows from this concept. It provides that each “department” of government (the executive, the judiciary, and the legislature) are subject to limits and thereby prevents one branch of government from intruding on the protected jurisdiction of another.

The separation of powers ensures that power is divided, and thus inherently restricted.  Taken in this vein, it is the first and best line of defence for individual liberty, before any constitutional bill of rights

This is not to say that the rule of law and the separation of powers are sufficient conditions for the protection of human freedoms, but they are absolutely necessary—conditions precedent to a modern bill of rights.  Institutions must respect their boundaries in order for a constitutional bill of rights to work. If legislatures do not respect court decisions on the basis of a bill of rights, those decisions have no teeth. Similarly, if courts legislate, their decisions lack legitimacy. Bills of rights are only relevant if followed to their letter. In The Federalist No 48, James Madison cautioned against mere “parchment barriers”: protections which merely exist on paper. Taken alone, bills of rights are such parchment guarantees. As Justice Antonin Scalia was fond of noting, every “tinpot dictator” has a bill of rights. Bills of rights only make sense if they are actually followed by the institutions of government, including the judiciary.

A simple thought experiment bears this out. Iran has a bill of rights, but lacks the rule of law. Australia lacks a bill of rights, but enjoys the rule of law. Where would any free-thinking person rather live?

It follows that law must be respected in order for any notion of “human rights” to germinate. From the perspective of the judiciary, where judges interpret a bill of rights in accordance with its text and purpose, they honour the separation of powers and solidify the bedrock upon which human rights rest. Where, conversely, judges exceed the ordinary meaning of the bill of rights in service of a greater human rights agenda, they demonstrate a tacit disregard for the separation of powers.  In doing so, they risk harming those very rights they claim to cherish. If the courts are not prepared to abide by their prescribed constitutional role to “say what the law is”, we should not be surprised if the other branches of government – notably the executive – follow suit.

Unfortunately, Justice Abella has fallen victim to this tendency. For example, in the Saskatchewan Federation of Labour case, Justice Abella noted that it was time to grant “benediction” to the right to strike as a constitutional mandate. Historically, the right to strike was a creature of statute, not an inalienable right. When Justice Abella blessed, as a priest would, the constitutional right to strike, she undermined the rule of law and the separation of powers by going well beyond the original meaning of the constitutional provision at issue.

Justice Abella’s decision highlights a more general point: the practical cases coming before the courts today are, by and large, not “core” human rights issues that deal with basic human dignity. They are, far more often, peripheral policy issues that are inherently subjective.

Indeed, if we take a sober analysis of the Trump presidency to date, the issues that divide his supporters and critics do not really concern his treatment of human rights issues, but rather of his executive overreach. The problem is not that many Americans have come to reject the concept of the basic dignity of all people; it is that they are increasingly losing faith in democratic institutions and the rule of law.

Ultimately, Justice Abella is not a politician who can lead a political movement. A call to don the mantel of some nebulous idea of human rights is unhelpful precisely because the idea is a blank canvas: human rights can mean different things to different people (and different judges).

Justice Abella has previously expressed antipathy for the “rule of law,” and has not been shy about prioritizing her view of human rights over the separation of powers. And while reasonable people would not disagree with her basic comments about the importance of human rights, nor should we lose sight of the fact that rights can only flourish in a society that pays heed to its democratic institutions and the rule of law.