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Freedom, Duties of Care, Principles, Constitutions, and Justice
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Constitutional Issues - Part Five
Quebec and Sovereignty Association
A sufficiently sophisticated social contract also is fully capable of dealing with the idea of sovereignty association which is being sought by many people in the Province of Quebec. In the experimental spirit that should form an integral part of the democratic process, there is enough fluidity and flexibility to entertain provisions for a variety of political/social arrangements. The kinds of arrangements which are possible are limited only by our failure to come to grips with the structural character of the principles involved in sovereignty and participatory democracy.
In effect, there is a strong current within Quebec which wishes to run an experiment in democracy. There are all kinds of opinions about what the short-term and long-term effects of such an experiment would be for both the people of Quebec as well as for the people in the rest of Canada.
The truth of the matter is, however, that no one really knows. People have formulated their null hypotheses, but only real, live data has a chance of providing possible answers to this debate.
If Quebec establishes some sort of sovereignty association with the rest of Canada, and if that process should work well or moderately well for the people of Quebec, then, the rest of Canada should be happy that things have worked out for Quebec. Moreover, if the experiment works out well, there may be valuable lessons in the results of that experiment for the rest of Canada, in terms of how things might be done differently in other parts of Canada.
If, on the other hand, the experiment does not work out well, then, steps should be taken to assist the people of Quebec to enhance the quality of their sovereignty in the post-experimental context. Yet, such assistance does not mean that some arrangement should be arrogantly and contemptuously imposed on Quebec.
Instead, a new experimental program must be established that will display compassion, empathy or willingness to accommodate Quebecers, within negotiated limits, according to their needs in conjunction with the needs of non-Quebecers. The active principle should be a spirit of generosity in which there is a reciprocal eagerness to see one another enhance our respective sovereignties.
One must understand that Quebec may be on the verge of stepping into the unknown. They are taking a risk, but it is a risk that carries potential benefits for people beyond the boundary of Quebec. This is so because, whether the experiment works or it doesn't work, Canadians as a whole will have gained useful knowledge and understanding about the process of democracy.
All Canadians have a duty of care to one another. This means that, as far as the people outside of Quebec are concerned, they should be prepared to lend constructive assistance to the people of Quebec in ways that will permit the latter people to gain autonomy over their lives in a manner that reflects, both as individuals and as a people, the orientation of the Quebecois to the idea of sovereignty.
If the people of Quebec are willing to run a risk, then, the rest of Canada should attempt to find ways of helping the people of Quebec to minimize those risks. At the same time, the people of Quebec need to give some serious consideration to establishing various precautionary measures that will serve to minimize their own risks in their possible venture, as well as help minimize the risks that the rest of Canada may be willing to run in order to help Quebec in our collective experiment in democracy.
One way of minimizing those risks for both Quebecers and non-Quebecers is to start with some intermediate position between the present situation and full-fledged sovereignty association. For example, instead of seeking provincial control over some twenty-two areas that are presently under federal jurisdiction (as has been suggested in several reports), why not start out with seven or eight such areas? Because so many unknown variables are entangled in the proposed experiment, Quebec's long-term and short-term interests may be best served by running a small-scale experiment before contemplating a more massive project.
Another way of helping to minimize the risks is to build a review process into the proposed undertaking. In other words, if the people of Quebec decide to pursue the experiment of sovereignty association, let the people of Quebec sit down with the rest of the people of Canada after, say, four years in order to review the situation.
The review process should be geared toward looking at both the successful aspects as well as the not-so-successful aspects of the process of sovereignty association. It would be an opportunity for both sides of the experimental set-up to make adjustments of a reciprocal nature that would be mutually beneficial. Such a review process could continue on a regular basis.
The duty of care principle, however, is a two-way responsibility. Just as the rest of Canada has a duty of care to help the people of Quebec enhance the quality of their sovereignty, the people of Quebec have a duty of care toward other peoples of Canada. Therefore, Quebecers have a responsibility to lend constructive assistance to other peoples in order to help those peoples enhance the quality of their respective sovereignties. In this regard, there are three issues which immediately come to mind.
First, if the people of Quebec enter into some form of sovereignty association, they are not free to do whatever they like with respect to Native peoples. As indicated elsewhere in this document, Native peoples are now, and always have been, a sovereign people or group of peoples.
No one has had the right to extinguish that sovereignty, irrespective of whether that act is done in the name of some monarch or it is done in the name of the government of the Province of Quebec. Sovereignty association is not the private preserve of the people of Quebec, nor are they the only ones who qualify as a special and distinct society.
Extending a duty of care toward the sovereignty of Native peoples in Quebec means that the people of Quebec are going to have to make some decisions that will be as painful for them as will be the decision by the rest of Canada to let the people of Quebec explore the world of sovereignty association. If the people of Quebec want powers of immigration, unemployment insurance, energy, regional development and environment transferred from the federal government to the jurisdiction of the Province of Quebec, then, the people of Quebec are going to have to be prepared to transfer the same power to the Native peoples in their province.
As someone has once said, what is good for the goose is good for the gander. Thus, this means, among other things, that the entire James Bay project is going to have to be reassessed since it intrudes on the sovereignty of the Native peoples in, among other things, areas of energy, regional development and environment.
A second issue that arises with respect to the people of Quebec extending a duty of care to other peoples of Canada concerns the non-Francophone peoples of Quebec. Those peoples are entitled to an arrangement in the social contract which will provide them with guarantees that protect and enhance the quality of their sovereignty.
While such non-Francophone peoples may not want control over all of the sorts of powers that the Francophone people of Quebec may want transferred to the province, and while such non-Francophone peoples may be quite content to let the Francophone majority go about arranging provincial sovereignty in a way that is most consonant with the special and distinct characteristics of Quebecois society, nevertheless, such non-Francophone peoples are owed a duty of care by the Francophone majority. This duty of care requires the Francophone majority to be sincerely committed to constructively helping the non-Francophone minorities to establish a form of sovereignty that is most consonant with the cultural characteristics of those non-Francophone minorities.
The third issue which emerges in the context of working out the Quebec side of the duty of care relationship with the rest of Canada concerns the Francophone people residing elsewhere in Canada. Is the province of Quebec going to abandon those people, or is the province prepared to offer a variety of services in an outreach program that is directed toward helping those people retain their distinct and special orientation toward their own sovereignty as Francophone people? Although the rest of Canada also has a duty of care to extend to the Francophone people living outside of Quebec, do the Francophone people of Quebec feel that a duty of care is owed to the Francophone people residing outside of Quebec only by the non-Francophone people of Canada?
One possibility does suggest itself with respect to the duty of care Quebecers owe to the Francophones outside of Quebec. An outreach program might be established that would bring Francophone communities outside of Quebec under the provincial jurisdiction of Quebec.
Such an outreach program would be administered, staffed and operated entirely in accordance with the specifications of the people of Quebec. However, the program would be funded by Federal money, together with money from the provinces in which such Francophone communities existed. By underwriting the costs of this sort of outreach program, the Federal and provincial governments would be fulfilling, in part, their own duty of care to the Francophone communities outside Quebec.
Some people may wish to argue that by transferring certain federalist powers to Quebec, one is destroying Canadian identity and unity, thereby reducing Canada to, in the words of one observer, little more than a post office. The defining essence of Canadian identity and unity is not federalism, nor is it provincialism, nor it is a combination of federalism and provincialism.
The essence of Canadian identity and unity is the dialectic between the democratic process and the issues surrounding sovereignty. By permitting the people of Quebec to change the character of the dialectic in a variety of ways, through something called sovereignty association, Canadian identity and unity will not be affected in the least. Such a move would simply be another chapter in the history of how we, as Canadians, have attempted to handle the many problems which are generated when the democratic process engages the phenomenon of sovereignty and vice versa.
As suggested previously in this document, neither monarchy, federalism, Via Rail, the National Film Board, the Maple Leaf Flag, CBC, the National Anthem, nor any other symbol or institution is what lies at the heart of Canadian identity and unity. What lies at the heart of these two cornerstones of our nationhood is our willingness to assist one another to seek our respective sovereign destinies through a democratic process. Everything else may pass away or fall into disrepair, but as long as we democratically permit one another to struggle toward those arrangements of sovereignty which are reciprocal and mutually beneficial, then, Canada remains intact, and we will continue to know who we are as a collection of peoples.
A further item concerning the issue of Quebec sovereignty association remains to be touched. upon. This item actually reinforces the nature of balance which needs to be sought between the centralist/federalist tendencies in the country and the decentralizing tendencies in Canada.
More specifically, if the people of Quebec were to take the route of sovereignty association, this would be counterbalanced by a Senate reconstituted along the lines suggested previously in this document. Nowhere would this countervailing function be more in evidence than in relation to the Senate subcommittee on constitutional issues and the concomitant constitutional forums which are to be implemented in the provinces.
Constitutional forums constitute an intriguing, complex and flexible mixture of centralizing and decentralizing currents. The centralizing aspects of these forums will link the people of Quebec in an intimate, if not inextricable, manner with the rest of Canada. At the same time, the decentralizing facets of the constitutional forums will introduce themes into Quebec society that will both place constraints on, as well as give degrees of freedom to, the people of that province in ways that the provincial government will not be able to control. As a result, the forums have the potential for enhancing the quality of sovereignty of all the peoples of Quebec, as well as the rest of Canada.
Before leaving the topic of sovereignty association in relation to Quebec, one further observation seems warranted. Many people in Quebec have become so preoccupied, if not consumed, by the issues of sovereignty association, separation and independence, that many individuals have permitted these issues to overshadow a fundamental reality.
There will be only one difference between a pre-independence (or pre-sovereignty association) Quebec and a post-independence (or post-sovereignty association) Quebec. This one difference concerns the names of the people who will have control of the province.
In neither case (i.e., before or after) will the people have effective, meaningful access to unmediated power. In neither case will the people of Quebec have gained real sovereignty and autonomy over their lives. In neither case will the people be permitted, except through elections, to participate in the decision process.
In neither case will the people of Quebec have a fundamental hand in directly shaping the constitutional process that will govern the life of the province. In neither case will the destiny of the people's sovereignty be in their own hands; rather, in both cases, that destiny will be shaped by politicians who have their own agenda-an agenda that will be beset by problems if people are permitted real participatory power.
In short, independence, or sovereignty association, of whatever political character one cares to choose, does not address the critical problems of sovereignty unless that mode of association provides the people with a variety of alternative paths through which to pursue, protect and enhance that sovereignty-alternatives that are rooted in a rigorous, participatory methodology and not just a representational process. By defining oneself solely in terms of the presuppositions and properties of the separatist/independence/ sovereignty association dialectic among different levels of government, one lets democracy of a more substantive sort slip through one's hands. This latter democracy is a function of people, not governments, in which the latter serve the former and not vice versa.
Religious Freedom: Some Problems
Previously, various aspects of the constitutional crisis concerning the Native peoples and the people of Quebec have been addressed. These sorts of issues are well known to Canadians.
Indeed, much of the talk which is devoted to the current crisis usually focuses on these two peoples. However, there are others in Canada whose needs and problems must be taken into consideration if a revamped Constitution is to serve all Canadians.
To begin with, there is the question of religious freedom. While Canada prides itself as a nation in which, theoretically, individuals are free to commit themselves, if they wish, to a religion of their choice without any interference from the government, in practice this is not always the case.
Religion is not just a matter of having places of worship or having particular beliefs or values. Religion is also a matter of putting into practice what one believes, as well as acting in accordance with the values one holds in esteem.
Moreover, these beliefs and values are not meant to be activated only when one enters a place of worship and switched off when one leaves that place of worship. Religious beliefs and values are meant to be put into practice in day-to-day life.
In Canada, there is said to be a separation between church and state, or temple and state, or mosque and state. This separation is intended to curtail the possibility that people in power may try to impose a certain kind of religious perspective-namely, their own-onto the citizens of the country, irrespective of the wishes of those citizens.
What, in fact, happens, however, is that government officials either: (a) use a variety of strategies, diversionary tactics and Machiavellian manipulations to camouflage their religious prejudices; or, (b) wield a set of non-religious biases in order to place obstacles in the way of, as well as impose constraints upon, the way one can pursue one's religion of choice. Although, in the latter case, the people in power claim that they are being neutral with respect to religious beliefs and practices, in reality there is a huge difference between being neutral and being oriented in an anti-religious manner.
Being neutral in matters of a religious nature means, to be sure, that one does not favor one religion over another. On the other hand, being neutral also means that one does not favor a non-religious perspective over a religious perspective, or vice versa.
Neutral governmental decisions should establish constraints and degrees of freedom within the community that are based on a consistent principle (or set of principles). Such a principle should be geared toward helping people in general-irrespective of whether these people have a religious or non-religious orientation-to work toward enhancing the quality of their respective sovereignties while balancing considerations of rights and duties of care for individuals as well as the community as a whole.
Unfortunately, what happens in practice is that many governmental authorities, elected officials and justices often tend to interpret the idea of separation of state and religion to mean that a non-religious, rather than a neutral, perspective should be adopted in interpreting law, policies, programs, directives and the Constitution. This is the case, despite the fact that the Constitution Act of 1982 clearly states Canada is founded "upon principles that recognize the supremacy of God". In reality, if any governmental official or jurist actually made a decision based on an articulated principle which recognized the supremacy of God, that individual would wreak upon himself or herself the collective wrath of the gods and idols of secularism who would be exceedingly jealous of such supremacy.
No jurist or government has ventured forth with sufficient courage to delineate, in a legal opinion or in government policy, just precisely what is meant or entailed or encompassed by the notion that Canada is founded "upon principles that recognize the supremacy of God". They have not said what such principles are; nor have they said what it means for such principles to "recognize"the supremacy of God; nor have they said what the ramifications of such recognition and supremacy are; nor have they said what they mean by God. In fact, almost every decision the courts and governments have made virtually ignore such questions, problems and issues.
In effect, the opening words of the Canadian Constitution, the single most important document in Canadian society, are devoid of official meaning and have no explicit, official role or function in determining government policy or judicial decisions. To the extent that such constitutional words have any role at all, they do so in the dark recesses of unstated assumptions, biases and predilections that shape, color and orient the decisions made by officials-decisions that frequently have prejudicial consequences for the members of minority religions or for the members of majority religions with whom the officials disagree or for whom such officials hold antipathy.
The realm of education gives expression to just one facet of the aforementioned biases. Education should not be just a means to a job. Furthermore, education should not be a tool of assimilation as long as the meaning of "assimilation" requires individuals to submit themselves to someone else's imposed conception of sovereignty, identity, commitment and truth.
Becoming a loyal subject of Canada has nothing to do with being assimilated into some sort of pre-fabricated, monolithic, standard set of assumptions, values, beliefs, commitments and practices which public education is, among other things, intended to promote. Supposedly, such a monolithic process constitutes an allegedly unifying social and political medium. Yet, one can be taught values such as freedom, rights, democ-racy, social responsibility, justice and multi-culturalism without going to public school and without presupposing that everyone must engage these topics in precisely the same way.
On the other hand, public education cannot teach, say, a Jewish, Muslim, Hindu, Buddhist, or Native child about how to be a good Jew, Muslim, Hindu, Buddhist, or Native child. In addition, public education cannot actively assist such children to establish a spiritual identity or to adopt a spiritual way of life.
Public schools cannot do this because they have virtually no expertise in, or understanding of, what spirituality involves. Nor do public schools have the capacity to help an individual learn how to put all of this into practice on a day-to-day basis.
Religious communities are told, however, that such educational topics are not the responsibility of the public education system. Such issues are the responsibility of parents and must be done at night or on weekends or during the summer. Consequently, a supposedly neutral state has made it a matter of law, practice and convention that the public education system, despite being funded by tax money from religious communities, cannot accommodate a spiritual education.
Religious communities are free, of course, to begin their own educational system, but they are not permitted to have access to the taxes which they contribute to the government in order to be able to use that money for the purposes of religious education. Thus, Muslims, Jewish, Hindu, Buddhist, Sikh, Native Peoples and Protestant Christians must bear a special burden of paying twice if they want an education that reflects the values and practices of their religious tradition. The Catholic community, on the other hand, is permitted, more so in some places than in other places, to have access to public money to promote an educational process that does reflect that community's religious values and practices.
That Catholics should be entitled to educate their children according to the values and religious beliefs of their tradition is not in dispute. What does need to be critically examined is the decision process which singles them out as being, when compared with all other religious traditions in Canada, the only ones entitled to such public support.
Apparently, to paraphrase an insight made by George Orwell in another context nearly 50 years ago, in the barnyard of Canadian democracy, all animals are equal, but some are more equal than others. Those that are more equal than others enjoy the opportunity to pursue their religion of choice and learn about their religion of choice in ways that those who are 'sort of equal' do not enjoy the opportunity to do.
Such inconsistency is indefensible: morally, philosophically and logically. It is not neutral. It is discriminatory. It does not reflect the spirit of multi-culturalism.
The aforementioned sort of inconsistency clearly points out that the religious freedom of a great many people in Canada has been seriously circumscribed and inhibited. This is the case since the powers that be have taken something of fundamental importance to the pursuit and practice of religion-namely, education-and placed obstacle after obstacle in the path of certain peoples and communities of Canada with respect to their ability to pursue their religion of choice freely. These obstacles prevent many, if not most, religious minorities in Canada from having access to anything but a curriculum of subjugation to a preconceived master plan of assimilation. As a result, these people and communities are required either to: (a) submit to the values and practices of public education which are often antithetical to religious values and practices; or, (b) pay twice for the kind of education they want.
Education is an area that is very amenable to the implementation of the previously discussed principle of diversity of equality. Catholics, Protestants, Jews, Muslims, Sikhs, Buddhists, Native peoples, atheists, agnostics, humanists, and so on, all have their own ideas about what constitutes an appropriate educational process. The equitable way to handle this multiplicity of beliefs, values, interests, practices, and goals is not to impose a monolithic educational system on everyone and, thereby, treat everyone the same way by marginalizing, ignoring and denying, to an equal degree, the reality of everyone's perspective. The equitable solution is to provide people with educational alternatives from which they can select the one which is best suited to their needs, circumstances, and values.
In short, equality is best served by means of offering a diversity of alternatives. Educational programs do not have to be the same to be equal. The conditions of quality are satisfied when different educational systems meet the needs and reflect the values of the communities being served, respectively, by these different educational systems.
One may never be able to achieve a perfect fit between the diversity of educational alternatives which are offered and the diversity of values which exist in the community. Nevertheless, one needs to struggle in the direction of providing more flexibility and alternatives than presently exist.
Repairing the House
In addition to the radical program of reconstruction that has been recommended for the Senate, there are also a few structural changes that are to be proposed with respect to the House of Commons. The most fundamental of these changes stipulates that every House member be given at least one, and perhaps two, free votes of conscience per sitting of the House. How and when, or if, these free votes would be used would be left to the discretion of the individual members of the House. The intent of this proposed change is to allow for more than one kind of representational democracy to be exercised during the legislative process.
As things presently stand, the members of the various parties are required to follow party discipline and policy with respect to how the respective parties are oriented toward any particular legislative issue. Yet, the stance of a party does not necessarily reflect the will of the people who voted for that party or who voted for the members of that party who were elected to the House.
By giving members of the House one or two opportunities per sitting to vote against party policy, one would open up the possibility of allowing elected members to serve their constituents according to the actual desires of those constituents, rather than according to a "visionary" party policy which is imposed on people, irrespective of whether the latter like that policy or not. At the same time, by limiting the free votes to one or two per House session, one still permits parties-especially the one in power-to try to fulfil their legislative program or policy agenda for the country.
The presence of this discretionary power also could encourage a range of negotiations, compromises and co-operation that is difficult to achieve under the present Parliamentary set up in which aggressive, if not hostile, partisanship is the bedrock of legislative etiquette. Such antagonism naturally follows from the political need of the opposition to challenge, if not embarrass, the ruling power. This sort of conflict naturally follows, as well, from the attempts of the ruling power to skirt around the problems, questions and issues being raised by the opposition.
In addition to the foregoing suggestion for change in the House of Commons, there are several other possible modifications that are proffered here. First of all, the rule should be abolished which stipulates that a government loses its authority if it is defeated on matters of finance, such as the budget. In conjunction with the jettisoning of this rule, however, will be the fixing of a specific date, occurring once every four years, for elections to be held with respect to the members of the House of Commons, including, of course, the position of the Prime Minister.
By fixing a specific date as the time when House elections are held, one frees the election process from the caprice of choices based upon the ups and downs of a ruling party's popularity. Parties in power should not have the luxury of choosing times for elections which are most advantageous to them and/or least advantageous for their political opponents or for the people of Canada. Elections should be focused on issues, and the capabilities of candidates rather than on opportunistic strategies.
Another suggested structural change concerns the question of who has the right to commit the Canadian people to war. In the recent Persian Gulf war, there were those who argued that the Prime Minister had the authority to commit Canada to war. Others claimed that the Prime Minister was not empowered to act on his own, but needed the vote of the House of Commons and the Senate.
I suggest that, with the exception of those cases in which Canada is physically attacked by hostile forces and, as a result, the Prime Minister orders immediate defensive measures to be taken, the ones who really ought to make this sort of decision, by means of referendum, are the people of the country. Moreover, there should be a clear choice offered between four kinds of options-namely: (a) offensive war (carrying the attack to an opponent in a way that is designed to lead to the opponent's defeat); (b) defensive war (i.e., Canadian forces will defend themselves if attacked, but will not initiate hostilities or carry out offensive strategies designed to defeat an enemy); (c) peacekeeping operations; and, finally, (d) none of the above.
A final suggestion in connection with changes concerning the House of Commons is more a matter of convention than of legal requirements. More specifically, the person selected for Prime Minister should be chosen on the basis of the quality and integrity of the person, and entirely independent of linguistic abilities.
Leadership should not be distorted by linguistic issues. There have been capable people, both within the French community as well as the English community, who have been passed over for consideration only because they did not speak English or French.
There will be those people, of course, who wish to argue that a person cannot be an effective Prime Minister unless such a person can communicate with the people of both linguistic communities. This sort of argument seems weak from a number of perspectives.
To begin with, there are an increasing number of people in Canada who have, at least, only marginal fluency in either English or French. These people are more at home in, and understand issues better when approached with, some language other than English or French. As long as there are people within government who can communicate with these people so that all parties concerned can address issues of substance, then, the linguistic capabilities of the Prime Minister are not of paramount importance.
Secondly, someone once described the English as a people divided by a common language. One possible moral, so to speak, of the foregoing observation is that communication is not a matter of what is conveyed by the tongue, but what is spoken by the hearts and actions of people. A person may be a brilliant speaker but a lousy person. Or, a person may say things that are inspiring to hear, but the person may belie those words with his or her actions.
Considered from another perspective, the same words do not always have the same meaning for different people. Interpretation often varies from person to person. As a result, misunderstanding occurs quite frequently because people communicate as if they are speaking the same language, when, in reality, the underlying semantics is altogether different, despite the sameness of the surface meaning of the words being spoken and heard.
Indeed, in this latter regard, one might even argue there are some advantages to not knowing the language of the Prime Minister, since, in translation, one can concentrate on issues and not get caught up in rhetorical style. Under such circumstances, more care and consideration might be directed to the problem of how translation can change meaning and, consequently, more attention might be devoted to making sure the speaker and recipient were understanding the words in the same way. Some features may be lost during translation, but not as much as one might suppose to be the case.
In any event, as indicated earlier, actions speak a lot more loudly and clearly than do words. Indeed, actions often times are a much truer reflection of someone's state of heart or sincerity than are that individual's words.
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Copyright © 2004 Interrogative Imperative Institute. All Rights Reserved.
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