1. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
2. See P Hogg,Constitutional Law of Canada(Student Edn Carswell Legal Publications, Toronto 2004) 131: a selection of books is listed in fn15.
3. See generally J Bentham,The Collected Works of Jeremy Bentham: An Introduction to the Principles and Morals of Legislation(Clarendon Press, Oxford 1996). The view that parliament is inherently democratic because representatives are elected may overlook the operation of the party political system, dominance of the executive and the electoral system. Aspects of those features can diminish the choices available to electors. Moreover, legislative action can impair the democratic process (eg denial of vote on grounds of race or criminal record).
4. The force of such an argument depends on how democracy is understood. If the democratic process is defined widely to include the processes of government, then judicial protection of fair procedures and decision making is neither undemocratic nor illegitimate. Further, on one view a democracy which encompasses restraint mechanisms on the majority to respect individual autonomy and protect minorities could be seen as more compassionate than one which did not. If so, judicial power to strike down legislation incompatible with human rights could be said to be consistent with such a democracy.
5. M Tushnet, ‘Weak-Form Judicial Review and “Core” Civil Liberties’ [2006] 41 HarvCR-CLL Rev 1; cf. J Waldron,Law and Disagreement(Clarendon Press, Oxford 1999).