Blog of the International Journal of Constitutional Law

Conference Report–Symposium on “What can Central and Eastern Europe Learn from the Development of Canada’s Constitutional System?”

–Emese Pásztor, ELTE Eötvös Loránd University

On 28 June, 2017, in cooperation with the Embassy of Canada in Budapest, the Faculty of Law of ELTE Eötvös Loránd University held an international symposium on the occasion of Canada’s 150th anniversary of Confederation.

The aim of the event was to invite a group of scholars to evaluate the influence of the evolution of the Constitution of Canada on Central and Eastern Europe. Besides others, Isabelle Poupart, Canada’s Ambassador to Hungary and Jeremy Webber, the Dean of the Faculty of Law of the University of Victoria were present at the event. As Attila Menyhárd, the Dean of the Faculty of Law of ELTE pointed out in his opening speech, the event was just the first step in the long-term international cooperation between Canada and ELTE University. Madame Ambassador Poupart emphasized that the aim of the symposium is rather to share experiences valuable for all the participating parties than finding out “what can Central and Eastern Europe learn from Canada.”

As it turned out later, there are a lot of such experiences worth sharing. Attila Menyhárd referred to the fact that beyond the corresponding dates of Canada’s 150th anniversary, and the 350th anniversary of the foundation of the Faculty of Law of the ELTE University, the history of Canada and Hungary runs parallel further.  Canada provided asylum to several Hungarians, which certainly had an effect on the culture of Canada, becoming one of the most multi-cultural and more innovative countries of the world. These factors had definitely influenced the legal system of Canada which is a true imprint of all the societal challenges Canada had to face in its history. Ambassador Poupart had a similar approach when pointing out why the topic of the Conference matched the priorities of the Embassy, as she emphasized that promoting the multi-cultural Canada is one of the main fields of the Embassy’s activities.

The chairperson of the morning session was Márta Dezső, Professor Emerita of the Department of Constitutional Law of ELTE University, while the afternoon session was chaired by Nóra Chronowski, the Head of Department.

In the first panel, Jeremy Webber (dean, University of Victoria) and Richard Albert (Boston College Law School) focused mainly on diversity in their keynote speeches. Dean Jeremy Webber called ironically Canada’s Constitution an ‘Agonistic Constitution’, while Richard Albert listed the values of this Constitution which have set an example for the rest of the world. Constitutions are usually mentioned as they were created in one instant moment, as a single declaration of intent, while the truth is that during Canada’s 150 years only change was persistent.

In Jeremy Webber’s interpretation, Canada is mainly defined by immigration, and especially immigration flowing from outside Great Britain, which had a great influence on the Constitution as well. No matter that we tend to see our constitutions as comprehensive, consistent and rational documents, the practice of constitutional interpretation rather shows that the constitutions are far less coherent than we would expect as constitutional lawyers. The dynamism of the Constitution of Canada shows a much more instinctive than a rational structure, which – as Webber argued – could lead us to the conclusion that Canada is an imperfect country with “too much diversity” and divergent perspectives. Webber’s conclusion ran through the whole Conference. According to him, the point of the Constitution is to express the intention to live together, even if we have debates. The Constitution is about the constant re-creation of the structure of the state and the constitutional institutions, and a country where this phenomenon is present is a country of values, despite all of its imperfections. From Webber’s presentation it was visible that Canada evaluates the fact that the country is an attractive destination for the refugees as confirmation of the Constitution’s success in representing different ideological perspectives.

Richard Albert emphasized that democracy, federalism and the respect of diversity are the main values of Canadian constitutionalism. He also highlighted the importance of the amending clauses and their role in providing social legitimation for the legal changes happened. The 5 (!) different procedures enshrined in Canada’s Constitution for the amendment of the Constitution reflects mainly the influence of federalism, which shows that Canada’s Constitution is not only a living instrument but an unfinished and an unfinishable document. The core value of this Constitution is this constant contestability, and it would be a huge mistake to hope this to be changed.

In the second panel, Lóránt Csink (Pázmány Péter Catholic University, Budapest) and Balázs Rigó (ELTE University, Faculty of Law, Budapest ) gave a presentation about the revolutionary importance of year 1867 in view of the changes in constitutional systems, while Hillel Sommer (Radzyner Law School, Israel) consulted the Canadian override mechanism and its usefulness and ideal constitutional regulation, concluding that by providing efficient guarantees, this mechanism can serve good purposes. Zoltán Pozsár-Szentmiklósy (ELTE University, Faculty of Law, Budapest) discussed the particularities of the proportionality test developed by the Supreme Court of Canada in 1986, evaluating the influence of the test on the method used in Hungary. According to the presenter, the main function of the Canadian test of proportionality is enhancing transparency, which observation was underpinned by an interesting case-study. The final conclusion was that by providing a test of proportionality with such a clear structure, Canada contributed significantly to the culture of justification.

The discussant of the third panel was Fruzsina Gárdos-Orosz, representing the Hungarian Academy of Sciences (HAS) Centre for Social Sciences, Institute for Legal Studies. Attila Nagy (from Subotica, Serbia) gave a presentation on the influence of the autonomy of Quebec on Kosovo and Macedonia, by having an interesting glance at the importance of the language. János Mécs (ELTE University, Faculty of Law, Budapest) addressed the problems of possible electoral reforms in Canada and Hungary. In his presentation generating a vivid debate, he examined the problems of the current electoral system and the possible means of change, stepping towards a more proportionate system, evaluating the practical and theoretical obstacles of the amendment of the Hungarian constitution in this regard. At the end of the panel, Eszter Bodnár (ELTE University, Faculty of Law, Budapest) enumerated the possibilities of selecting constitutional court justices, comparing – among others – the Hungarian model with the selection procedure of justices of the Supreme Court of Canada. Bodnár argued that no ideal selection procedure exists, but there certainly are models which would help us to select more independent, competent and experienced justices. Canada could teach us the most in acquiring transparency, which could be reached by introducing real public hearings and the judicial control of the selection mechanism into the system.

The fourth panel concerned human rights dilemmas. The discussant was Bernadette Somody (ELTE University, Faculty of Law, Budapest). Dragan Dakić’s presentation (HAS Centre for Social Sciences, Institute for Legal Studies) about the new challenges of reproductive choice with a view to technological improvements raised deeply uncomfortable but still really interesting questions about what protection shall be provided for the foetus growing in an artificial womb – if protection shall be provided at all – and why are such situations are different from the conflicts we all know when abortion or in vitro fertilization is on the table.  Marcin Górski’s (University of Łódź) topic concerned the notion of artistic expression, which he examined through a fascinating case-law analysis, and Ádám Fuglinszky (ELTE University, Faculty of Law, Budapest) gave an exposé about how different legal traditions can live together and influence each other within the same legal framework. Canadian bi- (or multi-) juralism opposes the requirements of equal treatment and the foreseeability of legal norms with the autonomy of provinces. Even if this kind of legal parallelism is completely alien from the European Union, from the perspective of international and interdisciplinary cooperation we can benefit from its conclusions.

Somody Bernadette, the discussant, highlighted that one of the main conclusions of the Symposium was that the main export products of Canada such as diversity, openness and transparency are precisely the values which the domestic market of constitutional ideas is in need in Central and Eastern Europe. As it was proven that we speak a common language, we have everything needed to continue the discussion.

In her closing remarks, Eszter Bodnár, co-organiser of the conference with Zoltán Pozsár-Szentmiklósy (both members of the ICON Society), emphasized the significance of comparative constitutional law in our days and expressed their hopes to go on with seeking connection points between Central and Eastern European constitutional systems and other legal systems of the world.

The event was held on the week of the Canadian national holiday. July the 1st is Canada Day, as it was on this day in 1867 that Confederation was proclaimed.


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