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Peace, order and good government

Peace, order and good government

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In many Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...

 jurisdictions, the phrase "peace, order and good government" is an expression used in law to express the legitimate objects of legislative powers conferred by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

. The phrase appears in many Imperial
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

 Acts of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

 and Letters Patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...

, most notably the constitutions of Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

, the Commonwealth of Australia and, formerly, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...

 and South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...

.

Canada


In Canada, "peace
Peace
Peace is a state of harmony characterized by the lack of violent conflict. Commonly understood as the absence of hostility, peace also suggests the existence of healthy or newly healed interpersonal or international relationships, prosperity in matters of social or economic welfare, the...

, order and good government
Good government
Good government is a normative description of how government is supposed to be constituted. It has been frequently employed by various political thinkers, ideologues and politicians.- Thomas Jefferson and Good government :...

" (in French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...

, "paix, ordre et bon gouvernement"), often abbreviated POGG, is often used to describe the principles upon which that country's Confederation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...

 took place. Originally used in the British North America Act, 1867, enacted by the Imperial Parliament, it defines the principles under which the Canadian Parliament should legislate. Specifically, the phrase appears in section 91 of the Act, which is part of the block of sections that divide legislative powers between the federal and provincial levels of government. In section 91, the phrase describes the legal grounds upon which the federal government is constitutionally permitted to pass laws that intrude on the legislative purview of the provinces.

Interpretation doctrines


In various cases, Canadian courts have found different functions for POGG. These include its residuary power; the text of section 91 allows Parliament to legislate "in relation to all matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces." Hence, when courts examine a jurisdictional dispute over something, if that thing is not specified as falling under provincial jurisdiction, the presumption is that the federal government may regulate it.

Emergency powers


However, this residuary function has not been the only effect of POGG. Canadian courts have also ruled that it is from POGG that the Canadian Parliament may legislate and invoke emergency powers. This began in 1882, when the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

 (then the supreme authority over Canadian law) ruled in Russell v. The Queen
Russell v. The Queen
Russell v. The Queen is a landmark Privy Council decision regarding the interpretation of the Canadian Constitution Act, 1867, and was one of the first cases explaining the interpretation of peace, order and good government....

 that the federal government could legislate with regard to alcohol
Alcohol
In chemistry, an alcohol is an organic compound in which the hydroxy functional group is bound to a carbon atom. In particular, this carbon center should be saturated, having single bonds to three other atoms....

, because even though this would probably have been considered provincial jurisdiction in ordinary circumstances, the federal government was acting to ensure order in Canada. This concept further evolved during the 1920s, when in the 1922 case Board of Commerce, it was stated that POGG could be invoked in times of war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...

 and famine
Famine
A famine is a widespread scarcity of food, caused by several factors including crop failure, overpopulation, or government policies. This phenomenon is usually accompanied or followed by regional malnutrition, starvation, epidemic, and increased mortality. Every continent in the world has...

, to allow Parliament to intervene in matters of provincial jurisdiction. POGG was later used this way in the Anti-Inflation Reference of 1976, when the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 allowed Parliament to regulate inflation
Inflation
In economics, inflation is a rise in the general level of prices of goods and services in an economy over a period of time.When the general price level rises, each unit of currency buys fewer goods and services. Consequently, inflation also reflects an erosion in the purchasing power of money – a...

 on the grounds that it posed a considerable economic problem for Canada. In this case, a great degree of deference was exercised in accepting what the federal government deemed to be an emergency.

National dimensions


The "national dimensions" (originally called "national concerns") doctrine was an alternate means of applying the POGG powers that found use in the mid 20th century. It allowed Parliament to legislate on matters that would normally fall to the provincial government when the issue became of such importance that it concerned the entire country.

The doctrine originated from a statement by Lord Watson in the Local Prohibition case, wherein he stated:
Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the Dominion.

After this case the doctrine was completely ignored until 1946 when Viscount Simons brought it back in the case of Ontario v. Canada Temperance Foundation, [1946] A.C. 193 (P.C.). The test as stated in Temperance Foundation was whether the matter "goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole".

Sociological value


Despite its technical purpose, the phrase “peace, order and good government” has also become meaningful to Canadians. This tripartite motto is sometimes said to define Canadian values in a way comparable to “liberté, égalité, fraternité
Liberté, égalité, fraternité
Liberté, égalité, fraternité, French for "Liberty, equality, fraternity ", is the national motto of France, and is a typical example of a tripartite motto. Although it finds its origins in the French Revolution, it was then only one motto among others and was not institutionalized until the Third...

” (liberty, equality, fraternity) in France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

 or “life, liberty and the pursuit of happiness
Life, liberty and the pursuit of happiness
"Life, Liberty and the pursuit of Happiness" is a well-known phrase in the United States Declaration of Independence and considered by some as part of one of the most well crafted, influential sentences in the history of the English language...

” in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

. Indeed, peace, order and good government has been used by some scholars to make broad characterizations of Canada's political culture. US sociologist Seymour Martin Lipset
Seymour Martin Lipset
Seymour Martin Lipset was an American political sociologist, senior fellow at the Hoover Institution, and the Hazel Professor of Public Policy at George Mason University. His major work was in the fields of political sociology, trade union organization, social stratification, public opinion, and...

, for example, contrasted POGG with the American tripartite motto to conclude Canadians generally believe in a higher degree of deference to the law. As Canadian historian Donald Creighton argued in his report to the Royal Commission on Dominion-Provincial Relations, the expression was used interchangeably in the 19th century by Canadian and Imperial officials with the expression Peace, Welfare and Good Government. The term Welfare referred not to its more narrow modern echoes, but to the protection of the common wealth, the general public good. Good government referred to good public administration, on the one hand, but also had echoes of what we now talk of as good governance, which incorporates the notion of appropriate self-governance by civil society actors, since one element of good government was thought to be its limitation to its appropriate sphere of responsibility.

Elsewhere in the Commonwealth


The phrase "peace, order and good government" appears in many 19th and 20th century British Acts of Parliament, such as the New Zealand Constitution Act 1852
New Zealand Constitution Act 1852
The New Zealand Constitution Act 1852 was an Act of the Parliament of the United Kingdom that granted self-government to the colony of New Zealand...

, the Colonial Laws Validity Act 1865
Colonial Laws Validity Act 1865
The Colonial Laws Validity Act 1865 is an Act of the Parliament of the United Kingdom. Its long title is "An Act to remove Doubts as to the Validity of Colonial Laws"....

, the British Settlements Act 1887, the Commonwealth of Australia Constitution Act 1900, the South Africa Act 1909
South Africa Act 1909
The South Africa Act 1909 was an Act of the British Parliament which created the Union of South Africa from the British Colonies of the Cape of Good Hope, Natal, Orange River Colony, and the Transvaal Colony. The Act also made provisions for admitting Rhodesia as a fifth province of the Union in...

, and the West Indies Act 1962.

In Ibrelebbe v. The Queen [1964] AC 900, 923, the words "peace, order and good government" contained in the Ceylon Constitution Order-in-Council (1946) were said by the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

 to
"connote, in British constitutional language, the widest law-making powers appropriate to a sovereign".


However, those powers are not unlimited. In The Trustees Executors and Agency Co. Ltd v. Federal Commissioner of Taxation (1933) 49 CLR 220, 234, Justice Evatt
H. V. Evatt
Herbert Vere Evatt, QC KStJ , was an Australian jurist, politician and writer. He was President of the United Nations General Assembly in 1948–49 and helped draft the United Nations Universal Declaration of Human Rights...

 of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 stated that when deciding whether a law was validly made:
"The correct general principle is... whether the law in question can be truly described as being for the peace, order and good government of the dominion concerned."


Recently, in R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult [2000] EWHC 413, the High Court of England and Wales struck down an ordinance made in 1971 by the Commissioner of the British Indian Ocean Territory
British Indian Ocean Territory
The British Indian Ocean Territory or Chagos Islands is an overseas territory of the United Kingdom situated in the Indian Ocean, halfway between Africa and Indonesia...

 expelling the entire population of the Chagos Archipelago
Chagos Archipelago
The Chagos Archipelago , is a group of seven atolls comprising more than 60 individual tropical islands in the Indian Ocean; situated some due south of the Maldives archipelago. This chain of islands are the southernmost archipelago of the Chagos-Laccadive Ridge a long submarine mountain range...

 in order to make way for an American military base at Diego Garcia
Diego Garcia
Diego Garcia is a tropical, footprint-shaped coral atoll located south of the equator in the central Indian Ocean at 7 degrees, 26 minutes south latitude. It is part of the British Indian Ocean Territory [BIOT] and is positioned at 72°23' east longitude....

, purportedly under his power to legislate for the "peace, order and good government" of the territory. Lord Justice Laws, ordering the British Government to allow the inhabitants to return to their former homes, condemned the depopulation of the islands in the name of "peace, order and good government" with the words:
"It was Tacitus
Tacitus
Publius Cornelius Tacitus was a senator and a historian of the Roman Empire. The surviving portions of his two major works—the Annals and the Histories—examine the reigns of the Roman Emperors Tiberius, Claudius, Nero and those who reigned in the Year of the Four Emperors...

 who said: They make a desert and call it peace - Solitudinem faciunt pacem appellant (Agricola 30). He meant it as an irony; but here, it was an abject legal failure."

See also

  • Canadian federalism
    Canadian federalism
    Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...

  • Johannesson v. West St. Paul
    Johannesson v. West St. Paul
    Johannesson v. Rural Municipality West St. Paul [1952] 1 S.C.R. 297 is a leading Supreme Court of Canada decision on the federal jurisdiction over aeronautics...

     (first case analyzing the term decided by the Supreme Court of Canada)
  • Police power
    Police power
    In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...


External links