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加拿大法律論文-加拿大憲法特征-The Canadian constitution features

時間:2012-01-16 15:58來源:www.liuxulw.com 作者:加拿大法律論文 點擊:
核心提示:加拿大法律論文-加拿大憲法特征-The Canadian constitution features

核心提示:加拿大法律論文-加拿大憲法特征-The Canadian constitution features

By many of the Canadian constitution law, including political habits and judicial practice, practice, but it is the main documents of English law, namely 1867 years of the British North America act. The bill in 115 years of the revised 23, and the last one amendment is the 1982 constitution act. Daniel's masterpiece the appropriate E.A. comments: "in Canada, not a relevant domestic government law is the complete set for yourself by Canada. The constitution of the bill, including part written and parts of an unwritten practice, habits." 1861 years of civil war and Canadian federal socialist thoughts form is synchronous, in Canada on the constitution left not erase trace. Therefore, the constitution is Britain and the United States constitution's mixture, it adopted the American federalism and British parliamentary democracy.


The Canadian constitution notable features:


<标题> A) written sex.


<标题> The Canadian constitution is almost written, because it with "the British North America act of plan based. In addition, amendment influence the content at any time, the British council through the law is clear as Canada, namely colony method, the validity act, 1931 years of the Westminster Westwood bill "and" the baal Buddha declaration, 1936's "abdicated act, such as the northwest territory accept orders", "the British Columbia command" and other jurisdiction of other command Britain Canada command, Canadian parliament constitution sex law, namely "of common law", "al north of gaza and Chester, one of the temperature act, 1960's" rights bill "and some Canadian parliament through the bill, also province is established and to change the country's those bill; Established in 1875 Canada's Supreme Court law, the relevant administrative meetings, legislation and the constitution written part of the election form. In short, the Canadian constitution written part and the United States is different, it is not a single document, it is a of 20 department documents, 13 of the British parliament act, seven Canada act and the four British parliament a collection of command.


The unwritten constitution part through the practice could see. Practice in the process of the development of the Canadian constitution plays an important role. For example, the cabinet and the relationship between the governor and the relationship between the government and the prime minister and the relevant provisions of the ministerial responsibility is Canada's practice of democracy by a dictatorship of the product. But anyway, Canada has a written constitution.


2) with flexible rigid constitution.


On a constitutional amendment, "the British North America act, has not made a statement, it only has a regulation, although provinces cannot change the governor shall exercise its functions and powers, but has the right to modify its province province constitution, therefore, the first constitution by Canada's parliament is to the British king submit the draft, by the British parliament to revise. Since 1949 the position there have been some changes. Canada's parliament is given about the constitution of rights and modify legislative affairs Canadian constitution, except in all the provinces of the legislative power outside, other power provinces including legislation institutions, government and the rights and interests of the school, English, the words of the law in the house of Commons, use tenure power have given Canada's parliament. The current 1982 the constitution provides for the amendment of the specific procedures, it confirms to amend the constitution in the process of the four steps, the first step, amendments must have passed by both houses and in all the provinces of the legislature passed, and this gives each province a veto. The second step, amendments must have passed by both houses and then by two thirds of the provincial legislature passed, and ask the provinces in the whole province at least half of the total population in favor of, through the amendment of the seven provinces must include or Mr Terry in Quebec's a. The third step, handle affairs involving a province or several provinces (not all province) by the senate, the house of representatives must be amendment, special province or related province of the legislature or lawmakers to pass. Fourth step, by the Canadian parliament amendments to the ordinary bill make and become. Therefore, the Canadian constitution in some degree is considered flexible constitution, because some amendment by Canada's parliament is ordinary bill composition. But, as the first step to the third step program determines the provinces and amendment is closely related to the design process, thus it is rigid constitution,.


Three) of a federal constitution.


<标题> 1867's "the British North America act and subsequent amendment in Canada established a federal system of national structure, which is mainly embodied in the following facts:


1, national power are divided into the central government and the provincial government dominion power, provincial government attributable to the special legislative control, and the legislative list. A dominion (central) have lists of other special outside the legislative power.


<标题> 2, a dominion (central) and provincial government in the power of the personnel is different, as long as it is the constitution involved, the central and provincial may change 3, Canada's Supreme Court is central and provincial jurisdiction of the disputes final authority, including that of final adjudication, enjoy, which showed that the constitution's sovereign status, and this is the one of the main features of the constitution.


4, the main part of the constitution of the fixed no consent of the provinces to agree is not changed.


Although is a federal, but strong centralized tendency can also see, it is mainly through the fact that obvious:


<标题> 1) the power of the classification of the scheme shows that it in enlarge the power.


<标题> 2) a dominion (central) beyond each provincial government wide powers of government. The governor of the bill for the governor from within a year after, can veto province bill, this gives the governor a veto.


<标题> 3) government appointed and dismiss the deputy governor provinces, and appointed deputy governor of the province bill approval revoked or by the governor agreed to keep the governor think right, can not agree (refused to) he agreed to keep the bill.


4) important judicial RenMingQuan gave the central.


<标题> 5) the senate members from prime minister appointed. And the United States is different, every province of Canada in the senate and does not have the equal representatives. In other words, the senate is not their interests of the defenders.


6) in the United States, exercise the power of the remaining states to allow the federal government to exercise. Canada is a dominion (central) government to exercise the power of the remaining to be exercise provinces. Canada maintained the centralized tendency. As she put it, k.C. : "... it's hard to know if we can put a focus on the modified with the constitution called the federal constitution. The focus is distorted the principles of federalism. I would rather say, Canadian constitution is a half a federal constitution." On the other hand, Kennedy professor emphasizes pointed out: "Canada is essentially a federal, state". The main reason is as follows:


(a) the central parliament is not British parliament or provincial council delegation, it has jurisdiction in widely and complete power;


(b) provincial legislature not British council delegation, it within the scope of the provisions in the constitution have absolute power;


(c) province legislature is not the central council delegation, and their status is different from the municipal administration institution almost;


(d) all provinces have right to independence. Thus described Kennedy said: "two government in the constitution gives them special or general power within the scope of the exercise the functions and powers equivalent respectively, sovereignty."


<标题> The current status of Canadian federal analysis evaluation showed that although Canada chose the highly centralized federalism, but Canadian provinces than in the United States today have states more power. However, unified part did not conflict with federal principle. The veto legislation to save almost no exercise and limit the legislative principles and violations of the British commonwealth cancel the interests of the bill. Deputy governor is no longer the central government control local tools. People agree with k.c.'s words "...... although the Canadian constitution in law is half the federal, but it is actually the most significant in the federal......"


<标题> 4) a dominion and all the balance:


<标题> In 1982 the constitution act of a provisions including show that: (1) the central government, congress, and the provincial government and legislative authority "shall have the right to improve Canadian national rich equal opportunities and further development, reduce the economic opportunity for all of Canada to one, providing full equality of vital public services"; (2) the Canadian government and parliament "has the authority to provide equal pay remuneration of the principle to ensure that, in the comparative reasonable tax standard, and on the basis of provincial governments have enough tax revenue to provide reasonable comparable public service standards".


1982 years of constitutional law also explain "in a sense and Canada more than the cultural heritage protection and improve are closely linked, keep consistent".


<标题> Five) parliamentary system of government.


The Canadian constitution is based on the basis of a parliamentary system worked out. The governor is nominal head of the executive. Prime minister, namely civilians courts majority leader, is the real head of government, according to the prime minister of the suggestion. By the courts of the most civilians minister no-confidence vote and resign. The government is also a parliamentary system provinces.


Six) to the Supreme Court.


The Supreme Court is the country's highest judicial institutions, with the United States and Australia is different, Canada does not lower federal courts. The province is equivalent to the court of India the higher court, the federal and provincial trial involving legal conflicts happen case, if the central and provincial regulations and against the constitution, the Supreme Court declared that the central and provincial legislature through the law was unconstitutional. Canada's Supreme Court does not enjoy the us Supreme Court's power. At first, the Supreme Court by a justice, five judges, now on the development, including chief justice nine judges.


<标题> Seven) a complete sovereignty.


Though Canada enjoys a dominion status, but from the complete sense, it is a complete sovereignty. 1931 years of the Westminster Westwood regulations admit that Canada's sovereign position, it is no longer the colonies, but a sovereign state. It to the domestic and foreign affairs completely independent of the exercise control. The 1982 constitution act set its own constitution, the end of the British parliament to Canada's control. Canada is the members of the United Nations, it to its behavior accept international public opinion of the highest sanctions.


<标题> Eight) a bicameral legislature legislature.


Canada's parliament is a bicameral legislature. The house of common is lower, the senate is a. Lower house direct election, substituting produced by the nomination, there are 181 members of the lower house at first, now has 282 members. The senate has 72 members at first, now increased to 104 members. Today the senate without power, it was almost a recording, imitate the house opponent machine and echo chamber. Frist, a jazz description: "street, who wants to know the senate to such problems? What was the attitude in the press, people in order to obtain a successful conclusion, want to know what the senate have views and the senate to involve the last and most of the work in the legislative situation unified branch is how one and the same, who will really make out trouble to come".


9) rights and freedom charter.


<标题> In 1982 the constitution act of increased the most important part of the Canadian constitution is the rights and freedom charter content. Although canadians already enjoy the traditional extensive human rights, but these rights almost no written into the constitution. For the basic right of citizens and free from infringement or not under the government's abuse is no guarantee. The rights and freedom written into the constitution, the government will damage the basic human rights and freedom becomes difficult. If the individual's rights are infringed or veto it, they can to court accused.


This chapter includes the right to:


<标题> 1) basic freedom (conscience, thoughts, suit, peaceful assembly, association);


<标题> 2) democratic rights (the right to vote by vote, the right to vote);


<标题> 3) legal rights (unreasonable investigation, unreasonable arrest and detention, have the right to an attorney for public trial, right);


<标题> 4) migration right (access, some or removed from Canada or any a province);


5) equal right (irrespective of race, religion, nationality, national origin, gender, age, intelligence, mental or physical disability status, can not have discrimination);


6) official language, the right


7) minority language education;


However, all these rights should be reasonable limit. Such as to be able to show that in order to maintain a free and democratic society for reason, which restricted by the court will decide.


Above can be inferred, of the Canadian constitution makers make full use of the British and American model, conceived a the most suitable for Canadian political conditions and environment model.

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