The Era of "Activist" Courts of Justice

"The rise of judicial activism and human rights culture came from two important developments that changed the way English judges saw themselves. The first was the increasing ambit of European human rights law, with the judges in the European Court at Strasbourg progressively widening their scope as part of the growing ideological belief in universal legal principles that trumped the law of individual countries. Although the Strasbourg court has nothing to do with the European Union, this ideology fitted the accelerating movement towards political union in Europe and the idea of a supranational political entity."
"This gave English judges the opportunity to flex their muscles in new directions ... They saw themselves as the last redoubt of democracy fighting an over-mighty executive. They began to challenge government policy more and more -- especially over asylum and immigration cases."
"As a result, they came to think of themselves in a much more political way. When the Labour government came to power in 1997, it made a seminal mistake. Instead of putting the judges firmly back in their box, it entrenched judicial activism by incorporating the Human Rights Convention into English law. Bringing human rights law home in this way did much more than repatriate it and make it binding on the English courts. It galvanized special interest groups to make demands on the grounds that these were 'rights' enshrined in law, created a burgeoning industry of human rights lawyers and -- despite acknowledging the ultimate supremacy of Parliament -- effectively transferred much political power from Parliament to the courts."
Londonistan ... Melanie Phillips

"We understand the government is considering all legal options. As the prime minister has said, most Canadians find it offensive that someone would hide their identity at the very moment where they are committing to join the Canadian family."
Stephen Lecce, Conservative government spokesman, Ottawa

"At that one very public moment of a public declaration of one's loyalty to one's fellow citizens and country, one should do so openly,  proudly, publicly without one's face hidden."
"The vast majority of Canadians agree with us, and that is why we will be appealing this ruling."
Jason Kenney former Minister of Immigration

Zunera Ishaq talks to reporters outside the Federal Court of Appeal after her case was heard on whether she can wear a niqab while taking her citizenship oath, in Ottawa on Tuesday, September 15, 2015.  (PATRICK DOYLE/THE CANADIAN PRESS)

Once again Canadian courts have overturned a policy of the elected Government of Canada. Canadian justices have become social activists; rather than interpret the law they feel, as unelected but rather appointed officials they are entitled to make law, not the elected legislators in Parliament. This time it was over a Pakistan-born Muslim woman who arrived in Canada in 2008. The woman refused to take the oath of citizenship which required she remove her niqab.

The government is set to appeal the ruling of the three justices of the Federal Court of Appeal, upholding the decision of an earlier Federal Court ruling that banning face coverings at such a signal ceremony was held by them to be 'unlawful'. They reject the Conservative government's contention that uncovered faces at citizenship ceremonies were "consistent with Canadian values of openness, social cohesion, and equality."

The 29-year-old woman enlisted the aid of immigration lawyers and human rights activists. Which led to Appeal Justice Mary Gleason stating that her court could recognize no logical reason to counteract the earlier lower court ruling. The Conservative government plans to re-introduce a law which would ban face coverings should they be re-elected. In so doing they will be reflecting the values and concerns of the majority of Canadians.

Emphasis is placed on the woman's insistence that she has a right to keep her face covered, including when taking part in a citizenship ceremony. She is described as a 'devout' Muslim, which translates that she is entitled to cover her face. Coming from a misogynistic society where face and body coverings are considered mandatory to demonstrate a woman's modesty, this is a cultural value, since the Koran itself places no such full covering demands on women.

The situation clearly outlines a reality, that not all immigrants are prepared to assimilate into Canadian society, and don't present as future candidates prepared to adapt themselves to the prevailing culture of societal values. It is from among such people that demands for equality of Sharia law with the indigenous law of the land emanates. This does not auger well for the future of a free and open society.