What is higher than unalienable rights - "the code of legitimacy", apparently.

Mr. Justice Frank Iacobucci made a startling disclosure last month upon his retirement from the Supreme Court of Canada.

We Canadians have been under the impression that the highest authority in Canadian law is the Charter of Rights and Freedoms.

Apparently that's not correct.

According to the judge, there's something above the Charter, something by which the Charter itself is being judged. He did not, however, tell us what this mysterious thing is. Only that it's there.

Now admittedly, I've gone farther than the judge in my account of his retirement statement.

He was discussing the "notwithstanding clause" in the Charter which empowers Parliament or provincial legislatures to overrule the Supreme Court. What he
said was this:

" It [the clause] is in the constitution, so its legality can't be questioned. But one could question the legitimacy of it. It was put there as a compromise to get the deal."

Notice the implication. We have the Charter and the Charter defines "legality." But then we have something beyond the Charter, the concept of "legitimacy."

Most of the Charter -- the parts he agrees with -- is both legal and legitimate.

One part, the notwithstanding clause, which he does not agree with, is legal but of "questionable legitimacy."

So you begin to see the role the judges have assumed. We thought they were there to merely define legality. But that was wrong. They're actually there to define "legitimacy," to assure that the Charter adheres to some kind of law beyond the law, which it is given to Supreme Court judges to discern and apply.

Presumably, it was because of their "legitimacy" that gay rights were "read into" the Charter by the judges, after the politicians who created the Charter had decided to leave them out.

And it is because of its "illegitimacy" that the judges would like to see the notwithstanding clause dropped from the Charter after the politicians had decided to put it in.

The notwithstanding clause is of questionable "legitimacy," says the judge, because it was the product of a political "compromise."

But then, was not the whole Charter a product of political compromise?

[So much so, in fact, that it is not a Constitution but a mere statute - and a statute of the legislature of the United Kingdom, and subservient to the eternal Law of Magna Carta]

Obviously not, according to the judge.

If it came from mere political process, that would have rendered it illegitimate.

So how did we get it?

It must have been conferred, endowed, come down from heaven maybe, except that we can't believe in that.

You see what the judge has done.

By questioning the "legitimacy" of the notwithstanding clause, he has raised a huge issue.

He tells us that above the Charter is this mysterious concept of "legitimacy."

But he doesn't tell us what it is, or where it comes from, or what is the basis of its authority, or where the rest of us can get to see it, read it, or discern it.

Perhaps it is available only to Supreme Court judges.

Maybe they issue it with the red dress.

The word itself -- "legitimacy" -- doesn't help much.

Both it and the word "legal" come from the same Latin word which means law.

So when the judge tells us that the notwithstanding clause is legal but may not be legitimate, he is telling us that it is lawful but may not be lawful, a statement that will confuse the common people, those of us who can't understand gibberish.

But what he does disclose is this: That he and the other members of the Supreme Court have been applying some kind of ideology -- a Code of Legitimacy -- and it is this code, not the Charter that they are entrenching in Canadian law.

The Charter did not include gay rights, but their ideology does, so they put gay rights into the Charter.

The Charter does allow elected politicians to overrule the judges on occasion, but their ideology does not, so they will do everything in their power to obstruct the exercise of the notwithstanding clause.

The public surely has the right to know all about the ideology of Supreme Court nominees before they're appointed, because that ideology will determine the laws we have to live under.

Prime Minister Martin promised that his nominees will be examined --  publicly, and that's very important -- by a parliamentary committee.

Two are to be appointed soon.

Let's see if he keeps his word.

[And if it makes any difference to getting our unalienable Rights back - don't hold your breath on this one folks.]

http://www.canoe.ca/NewsStand/Columnists/Calgary/Ted_Byfield/2004/07/11/535179.html