Cabo Verde
José Pina-Delgado, Associate Professor-ISCJS
Associate Justice - Constitutional Court of Cabo Verde
I. INTRODUCTION
This report aims at presenting the political,
legislative, jurisprudential, and doctrinal
developments of CV Constitutional Law
in 2021. The state of the liberal democracy
CABO VERDE
remained stable, at least according to major
international indexes1 and perceptions on
the ground. Thus, no major constitutional
changes or political frictions were notice-
able. Furthermore, the legislative agenda
led to the approval of relevant acts, and the
CCCV delivered important opinions and
maintained the number of decisions as com-
pared to 2020. Relevant scholarship on CV
political and constitutional matters was also
published.2 The conclusion is that there were
no substantive changes to the constitutional
system.
II. MAJOR CONSTITUTIONAL
DEVELOPMENTS
As in 2020, the SarsCov2 Pandemic con-
tinued to set the pace of the political year,
leading to the adoption of a series of mea-
sures for health control, social protection and
economic stabilization, which were continu-
ously adjusted according with the evolution
of the spread of the disease. The measures
concerned the protection of families, compa-
nies, charities, and social economy entities;3
Social and Income Protection;4 safeguard of
employment5 and economically disadvan-
taged young people’s jobs; support of micro
and small businesses;6 and subsidizing of
imported essential goods.7 The Cabinet kept
using executive resolutions based on the
Civil Protection Act provisions to adjust pre-
viously broad measures that were approved
last year,8 with impact on personal rights;9
to impose new restrictions – namely related
to the creation of a COVID-19 vaccination
certificate;10 and to the obligation of workers
whose job require contact with other people
to present it as an alternative to PCR or an-
tigen negative tests11 - and to soften others.12
For a small developing island nation, high-
ly dependent on tourism and migrant remit-
tances, the effects of the international travel
restrictions on the economy were substantial
and led to an estimated contraction of 15%
of the country’s GDP.13 Nevertheless, the
country managed to run an effective National
Program of Vaccination,14 based on the pro-
curement of vaccines through the COVAX
scheme or through international cooperation.
By the end of the year, according to official
data, 83% of the adult population were inoc-
ulated with the first dose of the vaccine and
70% with the second dose and vaccination of
teenagers had just begun.15
Despite the challenging environment,16 the
two national elections were held in compli-
ance with the legally established schedule.
The first one, for the National Assembly
(NA), witnessed a major increase of the
number of female lawmakers elected,17 due
to the application of the Parity in Access to
Public Office Act.18 Secondly, while it is true
that the main opposition party, PAICV, (cen-
ter-left) managed to improve its poll num-
bers, the same as the junior parliamentary
party, Democratic Christians UCID, rather
surprisingly, considering the dire economic
situation of the country, the elections led to
a clear victory of the incumbent center-right
party led by PM Correia e Silva: MPD. This
political party managed to elect the majority
of MPs with 50.04% of the votes and kept
2021 Global Review of Constitutional Law | 55
its majority in the NA.19 Nevertheless, this
success was overshadowed by internal party
struggle between two of the party factions
to elect the Chairperson and members of the
board of Parliament.20 This led to the depar-
ture of Mr. Santos, the former holder of that
position, to be a member of the Cabinet and
the election of Mr. Correia as the new Speak-
er.21 Thirdly, following what was seen as a
personal defeat, the President of PAICV, Ms.
Hopffer Almada, stepped down,22 and ulti-
mately was replaced after internal elections
by Mr. Semedo,23 a veteran lawmaker of the
party and very close to the former leadership.
A new Cabinet led by MPD leader, Mr. Cor-
reia e Silva, mostly composed of former
Ministers and new Secretaries of State, took
oath of office in May.24 Before the elections,
one of its most prominent members, Minis-
ter of Foreign Affairs, Communities and De-
fense, Mr. Tavares, was forced to resign25, af-
ter news reporting that Mr. De Paço, the CV
Honorary Consul in Florida appointed by
the Ministry, had links with the Portuguese
right-wing party, Chega. He was replaced
by Mr. Figueiredo Soares, former Minister
of Regional Integration.26 Another member
of the Cabinet, Minister of the Sea, Mr. P.
Veiga, quit after the elections, apparently un-
satisfied with what he saw as a lack of com-
mitment of the party leadership to effectively
back the presidential candidate that the party
was formally supporting.27
After the two terms of Mr. Jorge Fonseca,
who could not seek a third term of office, be-
cause of constitutional restraints, presidential
elections were held in October. A record of
eight candidates from different backgrounds
tried to contest the election, but one of them
was not accepted by the Chief Justice (CJ) of
the CCCV. Mr. Neves, who previously held
the position of PM in three consecutive cabi-
nets (spanning from 2001 to 2016), support-
ed by the main opposition party, PAICV, that
he chaired from 2000 to 2014, was elected in
the first round of the election.28 With a total
of 51.75% of the suffrage, he was ahead of
Mr. C. Veiga, also a former PM from 1991
to 2000 supported by MPD and UCID, who
managed to attract 42.39% of the votes.29
Jointly, the other candidates were not able to
gather more than 6% of the ballot.30 It will be
the second time that Cabo Verdeans will be
ruled under a ‘cohabitation system’ after the
56 | I•CONnect
period of 2011-2016 (when, interestingly,
Mr. Neves was PM), which is always chal-
lenging for a semi-presidential system of
government.
Three other public issues marked the polit-
ical agenda in 2021. Firstly, the Saab case,
wherein a Venezuelan national was arrest-
ed in the previous year in CV,31 following
a request of extradition made by the Unit-
ed States of America (USA). In addition to
personal efforts through international and
national legal fora, Caracas, politically and
publicly raised its understanding on the de-
tention of its national and of the legality of
the extradition and its effects on the peace
talks with the opposition.32 Close allies of
that South American country (like Russia)33
or geopolitical rivals of Washington (as Chi-
na)34 presented their concerns using different
levels and tones, sometimes directing their
criticisms at the USA. Secondly, the deten-
tion and bringing to justice of elected MP
and attorney critical of the judicial system,
Mr. Oliveira,35 accused of ‘crimes against the
rule of law’. The Permanent Commission of
the NA authorized his detention and he was
arrested and kept under pre-trial detention by
an order issued by a court of appeal. Until
the end of the year, all challenges he brought
to different courts were unsuccessful, but
one is still in the docket of the CCCV. Third-
ly, the contentious renationalization of the
air transportation company,36 CV Airlines,
previously privatized and controlled by Ice-
land’s Lofleidir.37
Important legislative work is worth high-
lighting. Acts amending the Criminal Code38,
the Criminal Procedure Code39 and the Civil
Procedure Code40 were approved by the NA
and promulgated by the President of the Re-
public (PR). A major amendment of the Per-
sonal Data Protection Act was also enacted,41
with changes being brought to the Data Pro-
tection National Commission Act too.42 The
Criminal Identification Act was approved43
and a Center of Police Data Collection and
Registration and a System of Police In-
formation Mechanism were established as
well.44 An Act on Cybersecurity was also
passed.45 A procedure to guarantee job sta-
bility to public servants with precarious con-
tracts with the administration also came into
force.46 Legislation related to social rights
and protection of vulnerable groups were
also promulgated, namely aiming at fixing
fees applied in the national health system,47
reducing red tape in the social security sys-
tem,48 expanding the beneficiaries of state
pensions,49 establishing financial support for
uninsured persons that require medical treat-
ment in Portugal,50 permitting extraordinary
regularization of foreigners,51 approving
policies targeting sexual violence in gener-
al52 and sexual violence against children in
particular,53 and regulating children caretak-
ers’,54 as well as elderly and disabled persons
caretakers,’ professional requirements.55
At the diplomatic and international legal lev-
el, several tax and customs conventions were
concluded with Community of Portuguese
Speaking Countries partners, namely with
Angola, Sao Tomé and Principe (STP) and
Equatorial Guinea, covering mutual assis-
tance in fiscal matters, tax evasion and elim-
ination of double-taxation, as well as rec-
ognition of driving licenses with STP.56 An
agreement to establish diplomatic relations
with San Marino was signed and dully ap-
proved as well.57 A representative diplomatic
step was the installation of a new embassy in
Abuja to cover both Nigeria and ECOWAS,58
signaling the declared intentions of strength-
ening relations with African countries and
African regional entities. Seemingly, the most
important international instruments signed
were the mobility agreement of the Com-
munity of Portuguese-Speaking Countries,
promoted under CV’s Presidency of the orga-
nization, which was subsequently approved
for ratification by the National Parliament,59
and the amendment agreement to the Agree-
ment on Visa Facilitation with the European
Union and approved by the same constitu-
tional organ.60 The First National Determined
Contributions under the Paris Agreement on
Climate Change was also drafted.61
With the exception of the election of Judge
Lima as a member of the Judicial Council,62
none of the positions vacant at important ju-
dicial and administrative bodies, namely at
the CCCV, at the National Electoral Com-
mission (NEC), at the Personal Data Pro-
tection National Authority, and at the Media
Authority, were filled, despite declarations
of the two main political parties announcing
negotiations to propose suitable candidates.63
The two vacant positions at the SC, which
are chosen by a competitive selection among
career judges organized by the Judicial
Council, were not filled as well.
III. CONSTITUTIONAL CASES
The number of constitutional decisions re-
mained steady with the CCCV delivering a
total of sixty-two decisions and the CJ decid-
ing, under its legal powers, eight requests of
presidential candidates, rejecting one of the
candidacies by reason of dual-nationality of
the candidate; lack of proof of residency in the
country in the three years prior to the presen-
tation of the candidacy and lack of sufficient
proposing signatures.64 The majority of the de-
cisions – forty-one – were rulings or judgments
related to constitutional complaints, leading
to eighteen admissibility rulings (R-3/2021;
R-4/2021; R-7/2021; R-8/2021; R-9/2021;
R-11/2021; R-16/2021; R-18/2021; R-20/2021;
R-21/2021; R-22/2021; R-23/2021; R-24/2021;
R-28/2021; R-31/2021; R-32/2021;R-52/2021;
R-53/2021), ten inadmissibility rulings (R-
29/2021; R-33/2021; R-34/2021; R-40/2021;
R-41/2021; R-45/2021; R-46/2021; R-50/2021;
R-51/2021; R-56/2021) and two rulings allow-
ing plaintiffs to correct or complete their files
(R-17/2021; R-19/2021). Of the seven requests
for adoption of provisional measures, two were
granted (R-7/2021; R-28/2021) and five were
rejected (R-8/2021; R-21/2021; R-32/2021;
R-50/2021; R-52/2021). The CCCV decided
ten constitutional complaints on the merits,
which dealt with issues of interpretation of
ordinary courts of rules of the Criminal Proce-
dure Code in alleged violation of constitutional
rights of defendants, mostly related to excessive
pre-trial detention periods imposed to accused
persons, rights to hearing, right to be informed
of judicial decisions, right to appeal, inadmis-
sibility of evidence, presumption of inno-
cence and due process. Two of the judgments
favored the plaintiffs at least partially (J-
25/2021; J-55/2021), and eight found no vio-
lation of rights (J-2/2021; J-5/2021; J-6/2021;
J-43/2021; J-49/2021; J-54/2021; J-58/2021;
J-59/2021). A first-ever habeas data was also
filled, but it was ruled incomplete, leading to
the adoption of a decision allowing the cor-
rection of the memorial (R-35/2021). For this
reason, a decision on its admissibility was
postponed up until 2022.
Five electoral cases were decided by the
CCCV. Some of them concerned lists or can-
didate’s rejection by courts by reason of lack
of documentation. The justices were split in
those appeals. The majority understood that
requirements made by courts imposing the
presentation of records of decisions of na-
tional political party organs that proposed a
list and of the identification card of candi-
dates, were illegal (J-10/2021, written by AJ
Lima, with AJ Pina-Delgado dissenting65 and
J-12/2021, written by CJ Semedo, with AJ
Pina-Delgado dissenting).66 The dissenting
justice argued that the approach was based
on an isolated and literal interpretation of the
norms, that led to an incorrect determination
of law, contributing to a deterioration of the
mechanisms of control of fulfillment of elec-
toral candidacies requirements. In a different
case, related to time-limit to insert changes in
the list of eligible voters, the justices unan-
imously decided that an appeal put forward
by a regional organ of the electoral adminis-
tration against a local court decision rejecting
any alteration to erase double-inscriptions of
the Voters List, could not be granted (J-15-
2021, written by AJ Lima).67 However, one of
the justices didn’t agree with the ratio deci-
dendi presented by the majority and append-
ed a concurrent vote stressing that the norm
applied by the local court and confirmed by
the CCCV according to which electoral lists
are unalterable thirty days before the day of
the suffrage was unconstitutional by reason
of disproportionality and could not be used
as grounds of the decision.68 A fourth judge-
ment decided that a deliberation of the NEC
to forbid electoral debates on grounds of
violation of the equality clause – because it
adopted a model according to which leaders
of parties that presented lists in all electoral
districts and leaders of parties that were con-
testing the election only in some of the elec-
toral districts would debate separately– , was
illegal and should not bar the realization of
those debates, gathered the full support of the
bench (J-14-2021, written by AJ Lima).69 The
same as other decision considering that the
NEC could not order the removal of political
posters and billboards on grounds of contra-
vention of the general principle of equality of
opportunities between the contestants. Con-
sidering that protected political speech was
at stake, that possibility would only be legit-
imate if such restriction was clearly estab-
lished by a clear rule, that not being the case
(J-13/2021, written by AJ Pina-Delgado).70
Major decisions
1. Advice 1/2020 (Referral by the PR on the
Constitutionality of Certain Norms of the Code
of Criminal Procedures Amendment Act): Pre-
ventive Review of Constitutionality71
The PR asked the CCCV to evaluate the
constitutionality of certain norms of the
Criminal Procedure Amendment Bill. The
judgement, written by CJ Semedo, found
unanimously that the rules that, a) protected
the image of the accused exclusively before
its condemnation by a trial court; b) didn’t
require police authorities to inform suspects
of their rights; c) extended the situations
that enable courts to order pre-trial deten-
tion with an imprecise formula; d) instituted
a presumption of continuance of criminal
activity for pre-trial detention purposes to
anyone previously convicted or suspected of
the practice of a crime; e) allowed the use of
summary procedures to prosecute domestic
violence and sexual crimes against children
and other vulnerable persons, were unconsti-
tutional on grounds of incompatibility with,
aa) the right of freedom of the person; bb)
criminal procedure guarantees; cc) the prin-
ciple of presumption of innocence.
2. J-39 (Saab v. SC): Concrete Review of
Constitutionality72
Mr. Saab, besides other appeals that the
CCCV found inadmissible (R-1; R-40; R-41,
R-46-2021), challenged the decision of the
SC that confirmed his extradition to the USA
(J-28/2021). The appellant argued that the
SC applied unconstitutional norms and un-
constitutional normative interpretations of
national and international law. Even before
the deliverance of the opinion on the merits,
he asked the CCCV to suspend the process
on grounds that the Human Rights Commit-
tee had granted him provisional measures
that determined the suspension of his extra-
dition, but the justices understood that they
had no obligation to follow such a request
of that UN organ. Specifically, because they
found no treaty base for that power, and be-
2021 Global Review of Constitutional Law | 57
cause the arguments put forward were not
persuasive enough (R-30/2021, written by
AJ Pina-Delgado, for a unanimous court,
and also R-35/2021, written by the same jus-
tice, rejecting a request to declare the nullity
of the former). He also unsuccessfully chal-
lenged a decision of the Judge-Rapporteur to
allow the Public Prosecutor’s Office, as the
representative of the state requesting extra-
dition in the procedure under the CV legal
system, to present a brief and documents
responding to his thesis and allegations (R-
37, 2021, written by AJ Pina-Delgado, for a
unanimous court, and R-38/2021, rejecting a
request to declare the nullity of the former).
After considering segments of the ap-
peal to be inadmissible, on the merits, the
CCCV, in a decision drafted by all the Jus-
tices, judged, that, a) the normative inter-
pretation of a customary international rule
applied by the CCCV according to which
CV, as a transit state, had no obligation to
recognize immunities of criminal jurisdic-
tion of a special envoy simply because he
was sent by a State to another State that ac-
cepted him as such if the country was not
informed in advance of his arrival was not
unconstitutional; it also determined that, b)
rules of the International Judicial Coopera-
tion on Criminal Matters Act (IJCCM Act)
that legitimate the detention of a person
wanted for prosecution in foreign jurisdic-
tions after an urgent request sent through
the INTERPOL mechanism of communi-
cations, was not unconstitutional, despite
the fact that the foundational instrument
of that organization was not ratified by CV
and that the requests were not accompanied
by judicial warrants; c) a rule of the IJC-
CM Act that allows the Minister of Justice
to waive the promise of reciprocity of the
requesting state requirement, was also not
unconstitutional; d) likewise with another
rule of the IJCCM Act that doesn’t allow
local courts to scrutinize the merits of the
accusation made against the person in the
requesting state, but only the fulfillment
of extradition formalities and the constitu-
tional and legal limits to extradition related
to political motives, penalties applicable
and due process. Concerning an interpre-
tative norm according to which there was
no requirement to conduct a public extra-
dition trial, two of the justices deemed it to
58 | I•CONnect
be compatible with the Basic Law, but one IV. LOOKING AHEAD
dissented. Finally, regarding an interpreta-
tive norm according to which CV courts In 2022, amendments to the Labor Code
were bound to execute a decision of the and to the Public Service Act are expected.
ECOWAS Court of Justice that ruled that Discussions are under way between parlia-
the detention the plaintiff was contrary to mentary groups to fill vacant positions in
the African Charter on Human and Peo- different organs, namely the CCCV, the Data
ple’s Rights, which the SC refused to ap- Protection Authority, the Media Authority,
ply on grounds of incompatibility with the the NEC, the Judicial Council and the Pub-
sovereign clause of the Constitution, the lic Prosecutors Council. Two judges of the
CCCV confirmed the understanding of the SC can also be appointed by the Judicial
national court. This, on grounds that CV Council, and subsequently the plenum of the
had neither signed nor ratified the treaty court will be able to elect a new president.
that recognized jurisdiction to that region- Apparently, decisions of human rights bod-
al court to deal with individual requests on ies, namely the Human Rights Committee
human rights matters and because non-ap- and the African Commission on Human and
plication of the rule of exhaustion of local Peoples’ Rights on complains that Mr. Saab
remedies was also unconstitutional. Sub- has arguably brought against the State of CV,
sequent requests of clarification or nullity can be delivered next year.
of J-39/2021 (dealt with by R-42/2021 and
R-47/2021, respectively) and to question
an act of the Clerk of the Court that certi-
fied that J-39/2021 was final and definitive
(decided by R-57/2021) also failed.
3. J-60/2021 (Referral by the Ombudsman
on the Constitutionality of the Age Limit to
Access Non-Qualified Jobs in the Public Ad-
ministration (PA))73
The Ombudsman referred a rule of the Pub-
lic Service Act that established a limit of
thirty-five years for a citizen to be hired for
a non-qualified job in the PA to the CCCV.
The opinion, written by AJ Pina-Delgado
for a unanimous Court, despite accepting the
idea that the State could, in limited cases, es-
tablish age limits requirements for the access
to certain public functions, stressed that the
challenged norm was contrary to the equali-
ty clause because it was disproportional and
based in age prejudices lacking scientific ba-
sis on the capacity of work of older persons.
Therefore, it found a case of direct discrimi-
nation on grounds of age for the first time in
its history, but declined to evaluate a possible
effect of indirect discrimination on economic
grounds arguing that that determination was
unnecessary. It also found that the rule was
contrary to the right to equal access to public
service and to the criteria established by the
constitution to be employed by the PA. For
those reasons, it judged that the norm was
unconstitutional.
1 CV is classified as free by the Freedom of the
World 2021 Report (FH 2022), 16; as a flawed de-
mocracy by the Democracy Index 2021 (Econo-
mist 2022), 9, and as an Electoral Democracy by
the Autocratization Changing Nature. Democracy
Report 2022 (V-Dem 2022), 45.
2 See J. Pina-Delgado, “Cape Verde” in: L. Bar-
roso and R. Albert (eds.), IRCR 2020, 2021, pp.
60-64; J.F. Cardoso, Especial complexidade do
processo no ordenamento jurídico cabo-verdiano
(Ise Editorial 2021); C. Pina, Textos de Direito de
Emergência e outros estudos (Chefia do Governo
2021); A.R. Gil, O Provedor de Justiça nos Países
de Língua Portuguesa (ICJP-CDP 2021), 49-55.
3 Law-Decree [LD] 4/2021, Oficial Journal [OJ],
I-S, no. 5, 15/01/2021, 104-106; LD 48/2021, OJ,
I-S, no. 60, 16/06/2021, 1858-1859.
4 Council of Ministers Resolution [CMR] 9/2021,
OJ, I-S, no. 11, 04/02/2021, 336; CMR 14/2021,
OJ, I-S, no. 13, 09/02/2021, 376-377.
5 Law 126/IX/2021, OJ, I-S, no. 43, 23/04/2021,
1504; Law 1/IX/2021, OJ, I-S, no. 76, Sup.,
06/08/2021, 2.
6 CMR 9/2021, OJ, I-S, no. 22, 25/02/2021, 733-734.
7 CMR 36/2021, OJ, I-S, no. 30, 19/03/2021, 913.
8 See GRCL 2020, 54-55.
9 CMR 4/2021, OJ, I-S, no. 5, 15/01/2021, 110-
112, CMR 13/2021, OJ, I-S, no. 11, 04/02/2021,
338-339, CMR 38/2021, OJ, I-S, no. 30,
19/03/2021, 916-917, CMR 108/2021, OJ, I-S, no.
118, 01/12/2021, 3001, CMR 116/2021, OJ, I-S,
no. 118, 28/12/2021, 3090-3092.
10 CMR 78/2021, OJ, I-S, no. 75, 30/07/2021,
7-20.
11 CMR 82/2021, OJ, I-S, no. 81, Sup.,
23/08/2021, 2.
12 CMR 98/2021, OJ, I-S, no. 106, 28/10/2021,
2734-2735.
13 See https://www.worldbank.org/en/country/
caboverde/overview#1.
14 NA Resolution 18/2021, OJ, I-S, no. 19,
18/02/2021.
15 See Covid-19 Vaccination Bulletin, no. 23,
19/12/2021 (English), available at the homepage
https://covid19.cv/wp-content/uploads/2022/01/
Vaccination-Bulletin-No-23_Ingles.pdf.
16 https://www.aljazeera.com/news/2021/4/18/
cape-verde-holds-parliamentary-vote-amid-ma-
jor-recession.
17 https://fr.africanews.com/2021/05/20/cap-vert-re-
cord-de-femmes-au-parlement-avec-27-deputees/.
18 GRCL 2019, 58.
19https://www.aljazeera.com/news/2021/4/19/
ca pe-verde-ruling-party-set-to-keep-majority-in-
election.
20 https://www.anacao.cv/noticia/2021/05/23/
escolha-do-presidente-da-an-agudiza-disputa-
entre-veiguistas-e-ex-militantes-do-pcd/.
21 https://expressodasilhas.cv/politica/2021/05/19/
austelino-correia-o-setimo-presidente-da-assem-
bleia-nacional/74839.
22 https://inforpress.cv/legislative-2021-janira-hopf-
fer-almada-announces-resignation-as-paicvs-pre-
sident/.
23 https://inforpress.cv/rui-semedo-elected-pre-
sident-of-the-paicv-with-about-99-of-the-votes-
provisional-results/
24 PD 10/2021, OJ, I-S, no. 53, 20/05/2021.
25 https://inforpress.cv/luis-filipe-tavares-resigns-
prime-minister-accuses-paicv-to-creating-a-
soap-opera-for-their-own-advantage/PD 5/2021,
OJ, I-S, no. 4, 14/01/2021, 96.
26 PD 6/2021, OJ, I-S, no. 4, 14/01/2021, 96. 60 Resolution 24/X/2021, OJ, I-S, no. 127, Sup.,
27 https://www.asemana.publ.cv/?Baixa-no-Go- 28/02/2021, 2-10
verno-Paulo-Veiga-confirma-pedido-de-exonera- 61 CMR 107/2021, OJ, I-S, no. 118, 01/12/2021,
cao-do-cargo-de-ministro&ak=1. 2996-3000.
28https://www.reuters.com/world/africa/oppo- 62 OJ, I-S, no. 70, 16/07/2021, 1970.
siti on-candidate-neves-wins-cape-verde-elec- 63 https://expressodasilhas.cv/pais/2021/12/11/
tion-2021-10-18/. negociacoes-adiadas-para-janeiro/77910.
29 See the official electoral results in the OJ, I-S, 64 See https://www.tribunalconstitucional.cv/
no. 105, 25/10/2021. index.php/decisoes/.
30 Id. 65 OJ, I-S, no. 57, 31.05.2021, 1794‒1802.
31 See GRCL 2020, 55. 66 OJ, I-S, no. 57, 31.05.2021, 1807-1817.
32 See Joshua Goodman, Venezuela halts talks 67 OJ, I-S, no. 57, 31.05.2021, 1830-1836.
after Maduro Ally’s extradition to US, available at 68 Id., 1836-1838.
https://apnews.com/article/venezuela-us-extra- 69 OJ, I-S, no. 57, 31.05.2021, 1827-1830.
dition-alex-saab-nicola-maduro-fc8f533592b1d- 70 OJ, I-S, no. 57, 31.05.2021, 1817-1826.
933c6c78f900c290534. 71 OJ, I-S, no. 25, 08.03.2021, 814‒832.
33 See http://saharareporters.com/2021/08/12/ 72 OJ, I-S, no. 100, 15.10.2021, 2508-2570.
russia-knocks-us-over-planned-%E2%80%98il- 73 OJ, I-S, no. 5, 17.01.2022, 130-141.
legal%E2%80%99-extradition-alex-saab.
34 Foreign Ministry Spokesperson Zhao Lijian’s
Regular Press Conference on September 17,
2021, available at https://www.mfa.gov.cn/ce/
cgmb//eng/fyrth/t1907901.htm.
35 https://inforpress.cv/sao-vicente-amadeu-ol-
iveira-prison-was-revenge-and-an-attempt-to-si-
lence-him-antonio-monteiro/.
36 https://globalarbitrationreview.com/coronavi-
rus/cabo-verde-faces-icc-claim-over-airline-na-
tionalisation.
37 LD 50/2021, OJ, I-S, no. 66, 06/07/2021,
1922-1924.
38 Law 117/IX/2021, OJ, I-S, no. 15, 11/02/2021,
428-515.
39 Law 122/IX/2021, OJ, I-S, no. 35, 05/04/2021,
1058-1087.
40 Law 129/IX/2021, OJ, I-S, no. 54, 26/05/2021,
1064-1760.
41 Law 121/IX/2021, OJ, I-S, no. 28, 17/03/2021,
876-882.
42 Law 120/IX/2021, OJ, I-S, no. 28, 17/03/2021,
883-906.
43 LD 25/2021, OJ, I-S, no. 33, 26/03/2021, 960-
964.
44 LD 24/2021, OJ, I-S, no. 32, 25/03/2021, 950-
953.
45 LD 9/2021, OJ, I-S, no. 9, 29/01/2021, 200-
206.
46 LD 33/2021, OJ, I-S, no. 9, 14/04/2021, 1274-
1278.
47 LD 2/2021, OJ, I-S, no. 4, 14/01/2021, 96-100.
48 LD 5/2021, OJ, I-S, no. 5, 15/01/2021, 106-
108.
49 Law 115/IX/2021, OJ, I-S, no. 10, 02/02/2021,
214.
50 CMR 23/2021, OJ, I-S, no. 22, 25/02/2021,
734-735.
51 LD 72/2021, OJ, I-S, no. 101, 18/10/2021,
2677-2680.
52 CMR 101/2021, OJ, I-S, no. 115, 19/11/2021,
2914-2931.
53 CMR 102/2021, OJ, I-S, no. 115, 19/11/2021,
2931-2926.
54 LD 79/2021, OJ, I-S, no. 127, 28/12/2021,
3080-3085.
55 LD 80/2021, OJ, I-S, no. 127, 28/12/2021,
3085-3089.
56 See the texts in OJ, I-S, no. 34, 31/03/2021,
passim.
57 Decree 5/2021, OJ, I-S, no. 30, 19/03/2021, 912.
58 LD 6/2021, OJ, I-S, no. 5, 15/01/2021, 109.
59 Resolution 14/X/2021, OJ, I-S, no. 76,
06/08/2021, 2092-2098.
2021 Global Review of Constitutional Law | 59
 Canada
Han-Ru Zhou
Associate Professor
Université de Montréal

Jean Leclair
Professor
Université de Montréal

I. INTRODUCTION mandatory retirement age after serving near-

ly 17 years on the Court. Born in Kenya
into an Indian Muslim family of Ismailis,
There has been an unusually rich array of
Jamal J became the first person of colour
events and developments of constitutional
appointed to the Supreme Court. Jamal J
significance in the past year. Part II recounts
is Liberal Prime Minister Justin Trudeau’s
a series of ‘firsts’, among others the ap-
CANADA fourth Supreme Court pick. A few days lat-
pointment of the first Indigenous Governor
er, PM Trudeau announced that Mary Simon
General of Canada, the appointment of the
would become the 30th Governor General of
first person of colour to the Supreme Court
Canada, making her the first Indigenous per-
of Canada and the first use of the ‘notwith-
son and fifth woman to occupy the post since
standing clause’ by the government of the
Confederation in 1867. Governor General
most populous province of Canada. Part III
Simon was sworn in on July 26.
begins with a report of what is probably the
most politically and constitutionally momen-
The new Governor General had not taken
tous case of the past decade, References re
office for a month when, on her Prime Min-
Greenhouse Gas Pollution Pricing Act, in
ister’s advice, she dissolved Parliament and
which the Supreme Court dismissed a series
called a snap election. Although the duration
of constitutional challenges to the federal
of the election campaign was fixed to 36
‘carbon tax’ legislation. The second case, To-
days, the minimum length required by law, it
ronto (City) v Ontario (AG), marks the final
was the most expensive election in Canadian
chapter of the controversy surrounding the
history with an estimated cost of C$630 mil-
redrawing of Toronto’s electoral boundaries
lion. In the end, the Liberal Party’s hope of
midway through the municipal election cam-
turning its minority government into a ma-
paign. Finally, the report concludes with the
jority government did not materialize, as
uncommon Supreme Court case of two per-
the electors returned all the political parties
sons convicted of an offence that had already
to the Commons with an almost identical
been declared unconstitutional in 2013.
number of seats. The country is now under
its fifth federal minority government since
2004. Before then, the previous one was in
II. MAJOR CONSTITUTIONAL 1979-80. For the Conservative Party, the loss
DEVELOPMENTS of a third consecutive federal election since
2015 (despite receiving the greatest number
Federal Constitutional Politics of votes) eventually caused some members
of the caucus to trigger, for the first time in
On July 1, 2021, Mahmud Jamal was ap- February 2022, a statutory ‘leadership re-
pointed to the Supreme Court of Canada, view’1 that resulted in the resignation and
replacing Rosalie Abella, who had reached replacement of their party leader.

60 | I•CONnect
Ontario and Québec Invoke the Notwithstanding
Clause
On June 14, 2021, the Legislature of Ontario
enacted the Protecting Elections and Defend-
ing Democracy Act, the purpose of which
was to use its override power pursuant to s 33
of the Canadian Charter of Rights and Free-
doms to shield the province’s restrictions on
third-party ‘political advertising’ from Char-
ter challenges. The Act was a response to
Working Families Ontario v Ontario,2 where
the Ontario Superior Court struck down, as a
violation of freedom of expression, several of
those restrictions, in particular the spending
limits of C$24,000 in one electoral district
and of C$600,000 in total on political adver-
tising by a third party during the year prior to
a provincial election campaign.
Following the government’s decision to
use its override power, the applicants from
Working Families Ontario launched a new
constitutional challenge against the 2021 Act
on the basis that it violated the right to vote
guaranteed by s 3 of the Charter, which can-
not be subject to the notwithstanding clause.
On December 3, 2021, the Ontario Superior
Court ruled that the impugned Act did not in-
fringe on the right to vote.3
The 2021 Act marks the first time in nearly
two decades that an override has come into
force outside Québec.4 In that province, the
government inserted an override in the Act
respecting the laicity of the State 2019 (also
known as Bill 21), which prohibits public
sector employees in a position of author-
ity from wearing religious symbols while
in the exercise of their functions. In Hak v
Québec (AG),5 the Québec Superior Court
upheld the constitutionality of Bill 21, except
as applied to English language educational
facilities, on the basis that s 23 of the Char-
ter guarantees minority language education
rights and cannot be subject to the notwith-
standing clause. The decision is under appeal.
In May 2021, the Québec government de-
cided to resort again to the notwithstanding
clause in introducing Bill 96, an important
reform that seeks to strengthen the Charter of
the French Language (the latter also known
as Bill 101). Doubtless, the government is
poised to pass the law before the next provin-
cial general election set for the fall of 2022.
III. CONSTITUTIONAL CASES
1. References re Greenhouse Gas Pollution
Pricing Act: The Federal ‘Carbon Tax’ and
the National Concern Doctrine
After the federal and provincial governments
failed to negotiate the introduction of a pan-
Canadian benchmark for carbon pricing,
Parliament enacted the Greenhouse Gas
Pollution Pricing Act 2018, whose primary
aim is to set minimum national standards of
greenhouse gas (‘GHG’) price stringency to
reduce GHG emissions. The Act establishes
a fuel charge applying to producers,
distributors and importers of carbon-based
fuel and a pricing mechanism for industrial
GHG emissions by large emissions-intensive
industrial facilities. Most importantly, the
Act only operates as a backstop: it does not
come into operation in provinces having an
already sufficiently stringent GHG pricing
system. And it does not displace provincial
jurisdiction over the choice and design of
pricing instruments.
As designed, the Act could not be a valid
exercise of any of Parliament’s enumerated
legislative powers, including criminal law
and taxation. At issue, therefore, was wheth-
er the Act could rest on the second prong
of Parliament’s residuary jurisdiction under
the ‘Peace, Order and Good Government’
(‘POGG’) clause of s 91 of the Constitution
Act 1867, ie federal power over matters of
national concern.6 In the Court’s longest
decision ever (88,457 words; 616 paras), a
6.3 majority said that it could.
All division of powers analyses require, at
the first stage, the identification of the ‘pith
and substance’, or true subject matter of the
contested legislation. Only after then will a
court examine whether such a subject mat-
ter falls under federal legislative authority.
The challenge raised by the national con-
cern doctrine is that courts not only ascertain
the dominant feature of an impugned law,
but also define the scope and nature of the
‘matter of national concern’ to which it can
be hooked on. In so doing, courts perform a
constituent role, adding a new ‘permanent’
and ‘exclusive’ jurisdiction, ‘including [in]
its intra-provincial aspects’ (paras 102 and
121) to Parliament’s enumerated powers. In
assessing the scope of such a matter of na-
tional concern, judges must, therefore, bear
in mind the potentially centralizing impact
of their decision on Canadian federalism.
Speaking for the majority, Wagner CJ defined
both the pith and substance of the 2018 Act
and the matter of national concern in an
identical and very narrow fashion: the estab-
lishment of minimum national standards of
GHG price stringency to reduce GHG emis-
sions (paras 80 and 119). This strategy en-
abled him to uphold the Act. In respect of the
matter of national concern, Wagner CJ refur-
bished the test established 33 years earlier in
R v Crown Zellerbach Ltd,7 which requires
a matter of national concern to be endowed
with a ‘singleness, distinctiveness and indi-
visibility that clearly distinguishes it from
matters of provincial concern and a scale of
impact on provincial jurisdiction that is rec-
oncilable with the fundamental distribution
of legislative power under the Constitution.’
To determine distinctiveness, the Court in
Zellerbach had introduced the criterion of
‘provincial inability’ according to which ‘it
is relevant to consider what would be the
effect on extra-provincial interests of a pro-
vincial failure to deal effectively with the
control or regulation of the intra-provincial
aspects of the matter’.
First, Wagner CJ found that the Act’s regu-
latory mechanism of GHG pricing satisfied
the criterion of distinctiveness because it was
‘specific, and limited’ (para 175). Second,
such distinctiveness was held to exist because
the minimum national standards of GHG
price stringency, implemented as they were
through the backstop architecture of the Act,
constituted an identifiable matter ‘qualitative-
ly different’ from matters of provincial con-
cern (para 176). Finally, in his analysis of the
criterion of provincial inability, Wagner CJ
emphasized the extra-provincial effects of
provincial inaction on a collective national
and international action problem such as the
fight against climate change (para 187).
2021 Global Review of Constitutional Law | 61
Wagner CJ not only confined the new exclu-
sive matter of national concern to the specif-
ic and limited regulatory mechanism estab-
lished under the Act, he also recognized that
the national concern doctrine did not prevent
the application of the ‘double aspect’ doc-
trine, which comes into play when ‘the fed-
eral and provincial features of the challenged
rule are of roughly equivalent importance so
that [it] could be enacted by either the fed-
eral Parliament or provincial legislature.’8
Wagner CJ reasoned that ‘[p]rovinces can
regulate GHG pricing from a local perspec-
tive (under 92(13) and (16) and 92A [of the
Constitution Act 1867])’, while ‘Canada can
regulate GHG pricing from the perspective
of addressing the risk of grave extraprovin-
cial and international harm associated with
a purely intraprovincial approach to GHG
pricing’ (paras 197-98). Having so conclud-
ed, he held that the balance of federalism had
not been jeopardized, and added that, ‘[c]
onsidering the impact on the interests that
would be affected if Canada were unable to
address this matter at a national level, the
matter’s scale of impact on provincial juris-
diction is reconcilable with the division of
powers’ (para 207).
In dissenting judgments, Brown and
Rowe JJ9 argued that ‘courts should look first
to the enumerated powers, resorting to the
residual POGG authority only if necessary’
(para 341). Having concluded that the pith
and substance of the Act mainly related to
enumerated provincial heads of power, they
were of the opinion that the inquiry should
go no further (para 348). Still, they went on
to examine the national concern doctrine.
Brown and Rowe JJ repeatedly denounced the
adoption of a ‘minimum national standards’
criterion in the application of the national con-
cern test. In their view, the ‘injection’ of such
a standard ‘adds nothing’ to the qualification
of the matter when the latter is falling within
provincial legislative authority (para 303).
More importantly, they defined the matter
of national concern at stake in a very broad
manner: ‘the reduction of GHG emissions’
(para 370). Having thus qualified the matter,
they unsurprisingly concluded that such a
broad power did not satisfy the requirement
62 | I•CONnect
of indivisibility, and that recognizing Parlia-
ment’s authority over it has implications that
would ‘permanently alter the Confederation
bargain’ (para 592).
What is striking in the dissenting justices’ ap-
plication of the Zellerbach test is their next
to total indifference to the issue of extrapro-
vincial harm. They basically discarded the
provincial inability test by stating that it was
not a mandatory criterion, ‘but one indicium
of singleness and indivisibility’ (para 383).
2. Toronto (City) v Ontario (AG): Freedom of
Expression and Redrawing Electoral Bound-
aries During a Municipal Election Campaign
On June 7, 2018, the Progressive Conserva-
tive Party won the provincial general elec-
tion, and its new party leader Doug Ford
became premier of Ontario.10 Shortly after
the commencement of the parliamentary ses-
sion, the government passed the Better Local
Government Act 2018, which reduced the
number of electoral wards for the City of To-
ronto from 47 to 25. At the time, the city was
in the midst of its mayoral and municipal
election campaign. On September 19, 2018,
four weeks before election day, the Ontario
Court of Appeal denied an application to
restore the 47-ward structure, thus allowing
the elections to proceed under the 2018 Act.
At Supreme Court level, a 5.4 majority up-
held the constitutionality of the Act. Deliv-
ering the majority judgment, Wagner CJ
and Brown J characterized the freedom of
expression claim of the City of Toronto as
one seeking the enforcement of a positive
obligation on the part of the state to restore
or maintain the 47-ward structure. In order
to succeed in their Charter challenge, the city
had to meet the higher standard of demon-
strating substantial interference with free-
dom of expression, namely that the ‘lack of
access to a statutory platform has the effect
of radically frustrating expression to such
an extent that meaningful expression is “ef-
fectively preclude[d]”’. Concerning the To-
ronto’s 2018 local elections, Wagner CJ and
Brown J noted that all the candidates still
had 69 days of campaign left after the 2018
Act came into force. Therefore, the majority
justices were of the view that the complaint
of state interference with freedom of expres-
sion was, in reality, a complaint about dimin-
ished effectiveness, which did not amount to
the level of substantial interference.
Counsel for the City of Toronto submitted a
second argument to the Court, namely that
the change in ward structure violated an ‘un-
written constitutional principle of democra-
cy’. Neither the majority nor the dissenting
justices properly defined what unwritten
principles were, but from their discussion
of the relevant Canadian case law and com-
mentaries, one could safely assume that they
referred to legal norms that ‘are not to be
found in the written constitutional text and
cannot be derived by normal processes of
interpretation from the text’.11 The majority
justices rejected the City’s argument and ad-
opted the position that, while the constitution
does include unwritten principles, they can-
not be used as a standalone basis for inval-
idating legislation. In their view, unwritten
constitutional principles may assist courts in
only two ways: in the interpretation of con-
stitutional provisions and ‘to develop struc-
tural doctrines unstated in the Constitution
per se, but necessary to the coherence of, and
flowing by implication from, its architec-
ture’. By contrast, Abella J, who issued the
dissenting judgment, opined that unwritten
constitutional principles ‘may be used to
invalidate legislation if a case arises where
legislation elides the reach of any express
constitutional provision but is fundamentally
at odds with our Constitution’s “internal
architecture” or “basic constitutional
structure”[.] This would undoubtedly be a
rare case’ (para 170).
For the dissenting justices, the central issue
of the appeal was whether the timing of the
2018 Act violated the Charter freedom of
expression. The dissenting justices refused
to adopt the distinction between positive
and negative obligations, observing that all
rights have positive and negative dimen-
sions. In any event, they were of the view
that the Act did not fall under the narrow
category of underinclusive statutory regimes
that would have triggered the application of
the substantial interference test. Applying
that the general framework of analysis for
freedom of expression cases, the dissenting