Volume 18, numéro 1, 1977

EN :

This article describes and comments the types of emergency situations which are recognised by the international law of human rights as justifying suspension of specific rights and freedoms. The European standards on this matter are extensively analysed, and subsidiary consideration is given to many connected agreements and reports sponsored by international organisations. The introduction asks whether the public danger must always be "officially proclaimed". It then indicates what state organs should be competent to declare an emergency and to what extent their decisions in this respect are liable to effective judicial and political control. On the availability of such checks depends the enforcement of those further safeguards which international bills of rights have set with respect to when a crisis actually prevails.

The first Chapter considers the terms whereby the derogation clauses of international charters of human rights refer to emergency situations and draws upon the construction which has been officially given to the relevant provisions. The definition of a public danger may be more or less encompassing and consequently more or less permissive. Thus, the reference in article 4(3)(c) of the European Convention on Human Rights to threats to the "well-being" in addition to threats to the "life" of the community has significantly broadened the scope of emergency exceptions to the freedom from forced or compulsory labour. Under the American Convention on Human Rights, derogatory measures can be taken when a situation "threatens the independence or security of a State Party", and it is demonstrated that this provides no valuable test as to whether a proclamation of emergency corresponds to an actual danger. The same is true of the expression "(threat to) the interests of the people" which appeared in the drafts of both the European Convention and the UN Covenant on Civil and Political Rights. These two agreements, as well as the European Social Charter, condone the taking of derogatory measures wherever the "life of the nation" is endangered, and the meaning of this phrase is studied in the light of the relevant preparatory works and the judicial pronouncements of the European Commission and Court of Human Rights.

In the second Chapter, critical sets of circumstances involving revolutionary elements are considered with a view to ascertaining whether they meet the requirements of international bills or rights as regards the nature of the crisis. The main problem which was brought before the European Commission with respect to this matter is raised by the coming to power of an unconstitutional government. Has such a government the right to derogate from the Convention in order to preserve its own existence? An affirmative answer was given in the First Greek Case. Nevertheless, it is submitted that the Report of the Commission on this Case embodies a considerably hardened approach as compared to its earlier case-law. Moreover, on the merits of the Case, the Commission has not stuck to the right question and has overlooked the main element: it has, in fact, decided that on April 21, 1967, no public emergency threatened, the life of the constitutional, rather than the revolutionary, Government of Greece and it has not drawn at all upon the effects of the occurence of the coup itself. Threats to the territorial integrity of Contracting Parties are then shortly discussed and, with particular reference to self-determination, it is shown that most derogation clauses favour the preservation of the status quo. The same would hold good when it comes to threats to democracy as such, whether they be raised lawfully or not. In this connection, the European Commission appears to have qualified the sweeping language that it originally used in the German Communist Party Case.

As to duration, finally. Chapter three asks whether the periods just preceding and just following a public danger are themselves covered by the relevant derogatory provisions. Anticipatory proclamations of emergency are invariably accepted as legitimate. All derogation clauses indicate that it is the threat which must be actual and not the hostilities, though these must be imminent. The European Commission has not applied consistently its own views on this matter. Conversely, transitional states of emergency may be acceptable from an economic standpoint, but not in the field of human rights. The difficulty here is to make sure that a crisis has not merely been placed under control and that a withdrawal of derogatory measures will not revive the threat to the life of the nation. This problem, it is submitted, must be treated in conjunction with the determination whether the suspension of rights and freedoms remained "strictly required by the exigencies of the situation".

The article concludes that valuable standards have been set on the international plane as to conditions regulating the existence of those public emergencies which condone suspension of human rights. Most of these tend to make sure that the legal conception of a public danger continuously relates to an actual crisis and remains essentially limited in substance and in time. The case is also made for the retention of judicial control over the type of "political" decision involved.

FR :

Dès l'attaque de Pearl Harbor par le Japon, le 7 décembre 1941, les États-Unis et le Canada ont tous deux pensé que leur sécurité était menacée par la présence de personnes d'origine et de descendance japonaises sur la côte du Pacifique, où existait déjà un fort sentiment anti-japonais. Les droits des individus paraissent avoir été tout à fait oubliés par ceux qui, dans les deux pays, furent chargés de remédier à cette situation plutôt imaginaire que réelle. Sans qu'il ne soit tenu compte de la nationalité et de la loyauté des personnes, tout un groupe ethnique a été ainsi obligé d'abandonner ses biens et placé de force dans des centres de détention éloignés du foyer et du lieu de travail habituel.

Aux États-Unis, ce déplacement massif fut le résultat d'Executive Orders, de Relocation Orders et de Civilian Exclusion Orders. Au Canada, cette déportation fut décidée par ordres en conseil. La British Columbia Security Commission, composée de trois personnes, eut la responsabilité d'organiser et de diriger l'évacuation de toutes les personnes de race japonaise de certaines régions de la Colombie Britannique. Cette Commission eut à déterminer le moment de l'évacuation, le mode de transport, l'endroit de détention, etc. . .

Aux États-Unis, quatre-vingt-dix jours après que l'évacuation eut été entreprise sous surveillance militaire, 110,142 personnes avaient été déplacées à partir de certaines régions des États de Californie, de Washington, d'Oregon et d'Arizona. Au Canada, une fois que la Commission de sécurité de la Colombie Britannique eut accompli son travail, toutes les personnes d'origine et de descendance japonaises, soit environ 21,000 personnes, avaient été repoussées à l'intérieur d'une bande de terre large de cent milles partant de la côte du Pacifique.

Aux États-Unis, les Japonais purent contester ce déplacement pendant qu'il eut lieu, avant la fin de la guerre. Au Canada, ce ne fut possible qu'après la guerre, et que relativement à la validité des ordres de déportation.

Dans le cas des États-Unis, trois cas ont été examinés par la Cour suprême. Dans deux causes, Hirabayashi v. United States (1943) et Korematsu v. United States (1944), le pouvoir du Gouvernement des États-Unis d'agir ainsi en temps d'urgence a été affirmé. Dans une troisième, Ex Parte Mitsuye Endo, l'idée que le Gouvernement peut dans ces circonstances détenir une personne loyale a été rejetée. Dans ce jugement le juge William O. Douglas a écrit :

« Un citoyen reconnu comme fidèle ne pose aucun problème d'espionnage ou de sabotage. La fidélité est une matière du coeur et de l'esprit, et non de race, de croyance, ou de couleur. Celui qui est fidèle n'est par définition ni espion ni saboteur. Quand le pouvoir de détenir dérive du pouvoir de protéger l'effort de guerre de l'espionnage et dit sabotage, la détention qui n'a aucun rapport avec cet objectif est sans autorisation ».

Au Canada, la Cour suprême s'est divisée sur la question de la validité de la déportation des épouses, des enfants de moins de seize ans et des sujets britanniques résidant au Canada. Le Conseil privé fut toutefois d'avis que les ordres en conseil devaient être envisagés dans leur ensemble et qu'ils n'étaient pas ultra vires.

D'un point de vue rétrospectif, le traitement des Japonais-américains et des Japonais-canadiens pendant la deuxième guerre mondiale montre qu'en temps d'urgence, même l'homme raisonnable et juste peut parfois oublier les droits d'autrui et agir d'une façon très étrange.

EN :

At its title indicates, the purpose of this article is to determine what the significance of the preamble of the British North America Act is; that is to say, what influence the preamble of the B.N.A. Act can have in the interpretation of that law.

In the first part of this article, Mr. Sormany discusses the fundamental points necessary for the study of the subject, i.e., the formal nature of the preamble of the B.N.A. Act, the analysis of its text, and the interpretation given it by the courts. . . In the second part, he discusses the focal point of his paper — the constitutional importance of the preamble of the B.N.A. Act.

More precisely, Mr. Sormany considers that the preamble of the B.N. A. Act can only have an importance that is essentially interpretation in nature. This is derived from the fact that it is no more than the preamble of a law and that, because of that, its significance is limited.

Then the analysis of the text of the preamble of the B.N.A. Act makes it possible to determine the exact significance of each of its four paragraphs, and to decide which of these are susceptible of having some significance. For example, in the course of this analysis the author explains that the part of the preamble of the B.N. A. Act which mentions the Constitution of the United Kingdom implies that the Constitution of Canada incorporates the principle of the supremacy of parliamentary law, that is, a fusion of the sovereignty of parliament and of the Rule of Law. Mr. Sormany also explains why, according to him, certain parts of the preamble of the B.N.A. Act, such as the third and fourth paragraphs, are not of constitutional significance.

Finally, the author completes this first section with a review of the jurisprudence relative to the preamble of the B.N.A. Act. The purpose of this review is to indicate in which cases and in what fashion the preamble of the B.N.A. Act has been invoked. Therefore, this review is not an analysis of this body of jurisprudence. The analysis of the most important cases appears in section 2. Nevertheless, this review permits one to determine that the preamble of the B.N.A. Act was not invoked only as an affirmation of certain civil liberties (Reference re Alberta Statutes,Saumur, Switzman, Hess, etc. . .) but also, for example, as a reference to the principle of parliamentary supremacy (Persons' Case), and as a recognition of the status and powers of the Lieutenant-governor (In re TheInitiative and Referendum Act).

At the start of the second section, Mr. Sormany focuses on the parts of the preamble, which are susceptible of having constitutional significance in the light of his discussions in section 1. According to him, three points emerge from the preamble of the B.N. A. Act, and each of them is the subject of a sub-section.

In the first sub-section, the author demonstrates that if one can perceive a reference to the theory of the pact, or to the Quebec and London Resolutions, in the preamble, then in none of its aspects can the preamble have a significance at the juridical level.

On the other hand, in the second sub-section, Mr. Sormany concludes that, in spite of its apparent ambiguity, the part of the preamble which refers to the Constitution of the United Kingdom has a very important constitutional significance because it constitutes the only affirmation in the B.N.A. Act of one of its basic principles which is the principle of the supremacy of Parliamentary law. The author analyses why case law has given an entirely different significance to this part of the preamble, finding in it either an affirmation of certain civil liberties, the recognition of the status and of the powers of the Lieutenant-governor, or again, a reference to the principle of Ministerial responsibility and the independence of the courts.

Finally, in the third sub-section, Mr. Sormany demonstrates that the preamble of the B.N. A. Act does not possess any constitutional significance in so far as the affirmation of the principle of federalism is concerned. This conclusion is based on the fact that the intent of the B.N.A. Act is sufficiently clear in that question and that the preamble does not add anyting in this respect.

This study is thus an exhaustive analysis of the constitutional significance of the preamble of the B.N.A. Act, and it is on this basis that its originality is founded. In effect, although it is a question of a part of the B.N.A. Act which is susceptible of having some influence on constitutional law, and in spite of the declaration of principles which it makes, to date, the preamble of the B.N.A. Act has never itself been the subject of specific analysis.

EN :

Frequently in the past, attempts have been made to systematize the notion of judicial review of administrative action. Thus, the Donoughmore Commission proposed the judicial, quasi-judicial, purely administrative model of analysis. The Commission was severely criticized, especially after the implementation of certain recommendations of the Franks Report which, in improving the quality of the control exercised on administrative tribunals, underscored the ridiculous character of that existing in other fields. The most violent criticisms came certainly from Griffith and Street, and also from Professor Wade who denounced the progressive atrophy of natural justice, the latter being the main topic of the present article.

That concept, distinguished from "procedural ultra vires" in that a judge may look beyond the law for rules he himself has set establishing certain procedural guarantees, goes back a long way in time. Nevertheless, it is not a panacea. Its scope is limited to the study of the means whereby a decision is reached; it does not examine the conclusion, but rather how that conclusion is determinded.

The usefulness of the notion was diminished when a condition of its application, the duty to act judicially, was added. Ridge v. Baldwin put the pieces of the puzzle back into place by discarding the decisions which gave the concept a much too restrictive interpretation.

These first steps of the fairness concept were rapidly followed in matters concerning the allocation of licences. Judicial intervention here dates back to the last century. Yet, the Nakkuda Ali and Parker decisions restrained the spread of control through an erroneous interpretation of an opinion by Lord Atkin. Both decisions were overturned by the Ridge case. Later on, it seems that Lord Denning took the lead in a movement aimed at extending the scope of the duty to act fairly. That principle received its modem da consecration in the Crockford's decision and was used later in other decisions of a like nature. The late professor de Smith remarked this new tendency to go beyond the words to see, in the matter at issue, what is fair and what is not.

Domestic tribunals, not in union matters alone (Breen) but also in sports problems (Machin), have also had this obligation to act fairly imposed on them, even though, strictly speaking, they do not have judicial powers. The question is rather to know whether a legitimate expectation of the person involved in the decision is brought into play, although the extend of the obligation varies depending on the circumstances of the case.

It would appear that there is continued refusal to intervene in matters of labour contracts when faced with a purely master and servant relation (Sylva). But now the complete absence of statutory guarantees is required (Malloch).

Procedural guarantees have continued to evolve since then. More and more, in different areas, thanks to the initiative of judges like Lord Denning, a system of English administrative law has developed. The principle of the existence of more or less defined minimal procedural guarantees has been established, no matter whether the administrative act implies the exercise of judicial power or not.

Yet, British courts still refuse to intervene in legislative functions, including regulations issuing from statutory committees, even should the legislative instrument result from false representations.

Control over immigration matters has become increasingly tightened, even though, at one time, there was an apparent desire to sanctify the absolute character of the discretion exercised in that field. The widening ofthat control came about as much from legislative changes as from judicial decisions. Thus it is that in the Re H.K. decision, there was established the duty to act fairly on the part of an immigration officer who might wish to turn a person back at the border whom he considers to be inadmissible.

Soon (if it has not already happened) Britons will also benefit from procedural guarantees in matters of land planning. A recent decision made use of the fairness concept in that field.

English courts have undertaken to sanctify fundamental procedural guarantees. The name, the scope and the extent of these rules has varied and continues to vary. It would seem, however, that there is a desire to leave the categorization of the act of administration to one side in favour of dealing with the consequences of an act for the individual. If a decision touches an interest, an vested right, or a legitimate expectation, the citizen is entitled to have certain minimal procedural guarantees respected, which may vary according to the circumstances, but which always involve the determination of what is fair in the particular instance. It is a necessary adaptation to the new reality of administration, something we hope to see come about in the very near future in Canada.