A Brief History of Democracy

Friday, October 29, 2010

The Dance of the Despot

I have to say that things just keep getting weirder in Quebec every day, especially if you are a democrat.

Yesterday, Premier Jean Charest announced that he was scrapping the electoral map drawn up by the independent Director General of Elections and effectively suspending the electoral laws in Quebec until he can figure out exactly what he wants.

The process of how the electoral map is to be drawn up, how the public is to be consulted, and how the new map is to be ratified in Quebec's National Assembly is clearly spelled out in the electoral law. It's just that Charest doesn't like or appreciate that the Director General of Elections, Marcel Blanchet, goes about doing his business in a law abiding fashion, which includes respecting the constitutional limits upheld by the Canadian Charter of Rights and Freedoms with regard to the equality guarantees in the manner electoral systems advance and maintain each citizen's right to vote.

In short, Charest doesn't like the way the law and the jurisprudence surrounding the right to vote is written, so he unilaterally decided to scrap Quebec's electoral law, which in my opinion is a despotic act. It demonstrates a fundamental contempt for democracy and a belief that the state, c'est moi.

This farce has been going on ever since he took office. Leading up to the 2003 Quebec General Election, he promised to introduce elements of proportionality into the voting system. He led us to believe that change was in the works: draft legislation was introduced and a special commission was convened to consult the population. The only problem was that no one supported the proposed the model. So, to save face he asked Mr. Blanchet to prepare a report detailing how the model could be improved. However, he didn't like the findings of the Director General's report so it was released three days before Christmas and then properly buried.

Still required by law to produce a new electoral map -- in passing, approximately one in four ridings didn't conform to the electoral laws limits on the number of electors per riding when Charest decided to call a snap election in 2008 -- Mr. Blanchet set out to draw up a new map that would respect the constitutional limits of the number of electors per riding. Given the demographic shift away from the outlying regions towards the regions surrounding Montreal, the new map eliminated three ridings in the peripheral regions and added three to the more populous regions. Sounds fair to me even though I am dead set against the use of the present voting system.

But once again, Charest didn't want what the law prescribes, so he introduced legislation that would in effect create rotten boroughs in the outlying regions in which the weight of a vote cast in one of these ridings would be three to four times greater than a vote cast in a large suburban riding.

Fortunately, the opposition parties would have none of it and neither would Mr. Blanchet, who on a matter of principle resigned rather than bow down to the desires of the despot. Bravo Mr. Blanchet!

Yesterday, in a truly pathetic gesture Charest calls a press conference in which he paraded the members of a committee from the outlying regions in order to announce that he is temporarily suspending the present electoral law and will introduce a new one by March 15, 2011, taking advantage of the fact that Mr. Blanchet is out of the country and unavailable for comment.

Very well orchestrated, and the dance of the despot goes on.

Thursday, October 28, 2010

Elizabeth May and Fair Vote Canada Apply for Intervener Status

On Monday, November 8, 2010, in Montreal at the Quebec Court of Appeal, Elizabeth May, leader of the Green Party of Canada, and Fair Vote Canada, the Pan Canadian civic association that promotes fair voting practices throughout Canada, will appear before the Court seeking to be granted intervener status in the Charter Challenge of the constitutionality of Quebec's use of the first-past-the-post voting system, Gibb v. Quebec's Attorney General and Quebec's Director General of Elections.

The two parties will be represented by the renown Canadian Constitutional lawyer, Peter Rosenthal, who successfully pleaded the landmark Figueroa v. Canada (Attorney General) before the Supreme Court of Canada. Many of the principle arguments put forward in our case stem from Figueroa decision. Having Peter join our legal team headed by Julius Grey, who has also successfully pleaded cases before the Supreme Court, gives us perhaps the strongest legal team ever assembled to put forward arguments in a democratic rights case in Canada.

The two parties could bring important perspective to our case. With regard to Elizabeth May, she leads the political party whose supporters participated in a mind boggling electoral anomaly which left the approximately one million Canadian electors who voted for the Green Party in the last federal election with no representation in Parliament. In the instance of Fair Vote Canada, its expertise in the manner that electoral systems function relative to their ability to produce fair electoral results is unparalleled.

At this point, I would like to thank the Green Party of Canada and Fair Vote Canada for their generous support, both financially and morally, for without their support and the support of other organizations and individuals, this case would never have made it this far.

As well, I would like to thank both Julius Grey and Peter Rosenthal for their generous spirit and unfailing devotion to advancing important democratic rights issues. In my mind, they both merit inclusion into the Order of Canada.

Monday, October 25, 2010

Quebec's Democratic Crisis Aids Our Cause

For the last eighteen months Quebecers have had their confidence in their democratic institutions put to the test. Month after month, new revelations concerning rampant influence peddling have come to light. All the while, a large majority of Quebecers have called for a public inquiry into the link between the construction industry and the financing of Quebec's political parties. Yet, Jean Charest's Liberal government has steadfastly refused. Needless to say, Quebecers have lost faith in their political system.

Earlier this spring, things came to a head when the former Quebec Minister of Justice, Marc Bellemare, accused Premier Charest of giving his consent to allow his party's principal fundraisers to have their say in the nomination of candidates to the judiciary.

Having lost all credibility to the vast majority of Quebecers, Charest had no choice but to convene a public inquiry into the nomination of judges (the Bastarache Commission)since at the most fundamental level the independence of the judiciary must be assured in order to restore faith in the system.

During the Commission's hearings, it came to light that a sitting judge petitioned one of the Quebec Liberal Party fundraisers to help him advance his chances to be promoted to the position of Chief Justice at the Quebec Superior Court in Quebec City. As well, we learned that another fundraiser sat on the selection committee and that when the candidates C.V.s were sent to the Premier before a decision was made, a post-it note would be attached if the candidate was a Quebec Liberal supporter.

Despite a thoroughly imbalanced process -- there were lawyers representing the Quebec government, the Quebec Liberal Party, and for the Premier while the opposition parties were not allowed to have representation thereby leaving Bellemare's lawyers alone to do the heavy lifting -- about 70% of the population believes Bellemare's version of the events while less than 20% find Charest's version credible.

To top things off, MacLeans magazine ran an issue that claimed on its cover that Quebec was the most corrupt province in Canada. This set off a round of soul-searching throughout Quebec in which it was extremely difficult to deny that we were experiencing the most serious democratic crisis since the days of former Quebec Premier Maurice Duplesis.

The reason I bring this up is that over and above the other developments that aid our cause since our case was tried, this development is the most important.

Judges, like all of us, are subject to their prejudices. If at an unconscious level they are aligned with supporting the party that forms the government, they are less likely to decide in favor of a motion like ours since such a decision could fundamentally change the way politics are done in Quebec. If, however, they are in a process of changing the nature of their affective ties with the present government, the opportunity arises that they would be more likely to render a decision in our favor.
In making this assertion, I am not implying that a judge would willfully make a decision contrary to the facts of the case and the principles of law. That being said, it should be noted that after all judges are human and like anyone else the affective processing that goes on in their brains influences the cognitive processes associated with analytical analysis.

It's for this reason, landmark decisions often follow a state of affairs that through fundamental cultural assumptions into question. For example, the striking down of Canada's laws surrounding prostitution at the Ontario Superior Court came on the heels of the Pickton case in which it was learned that the defendant had murdered at least 30 street prostitutes and fed their remains to the pigs on his farm. Affect can have an effect upon reason.

Regardless of the findings of the Bastarache Commission report, its release will once again bring to mind the fundamental systemic problems that Quebec's democratic institutions are experiencing and that release will occur less than a month before our appeal will be heard.

In summary, at the first instance we put forward a very strong case, which included expert testimony from two of the leading experts on electoral systems in Canada, expert testimony that demonstrated from a mathematical point of view that systemic distortion that first-past-the-post engenders, and empirical evidence that demonstrates how these distortions impinge upon the democratic rights of the plaintiffs.

Since then a number of developments in Quebec and the UK seriously undermine the case put forward by Quebec's Attorney General (of which I'll address in my next blog) but the one thing that we could never influence is the manner in which the judges who will hear our appeal will place our demand relative to their affective associations to the political system in place.

To the extent that such a variable comes into play during the deliberations leading to the decision, we could not have dreamed of a better set of circumstances in which to have our appeal heard.

Tuesday, October 19, 2010

Appeal to Be Heard February 8, 2011

Approximately two years after the decision was rendered in the Quebec Superior Court, our case which challenges the constitutionality of the first-past-the-post (FPTP) will have its day at the Quebec Court of Appeal.

To be frank, we didn't expect to win at the first instance. The case requires not only a thorough understanding of the jurisprudence surrounding the right to vote guaranteed by section 3 of the Canadian Charter of Rights and Freedoms, but as well a familiarity with the manner in which the different voting systems function. In my opinion, the judge who presided in our case did not understand the nature of the question that was being put forward and did not have access to the necessary human resources to plumb the depth of the question.

For example, he made his decision without making mention any of the expert testimony that we brought forward. In short, because we had voted in previous elections and two of the four plaintiffs had been candidates, our right to effective representation and our right to meaningful participation in the electoral process had not been violated. No mention of the substantive quality of that participation. His decision was silent on this matter, which I believe gave us the grounds for a successful appeal.

Sooner or later in this judicial process, the Court will have to respond to the essential question: "does the first-past-the-post method treat the supporters of smaller political parties in a fair and equitable manner?" Considering the institutional incentives that FPTP puts into place that makes it extremely difficult for smaller parties to gain representation, I have difficulty imagining how the Court can put forward a coherent argument that the FPTP method respects the values of a free and democratic society.

Fortunately, at the Appeal Court the case will be heard by three judges, each one having at his or her disposition a law clerk that will thoroughly examine the evidence that was submitted as well as the transcript of the previous trial.

As a result, we expect that the upcoming decision will respond to the nature of the question that has been put forward, and given the deep changes to the political context that have occurred since the first decision was handed down, the planets are now aligned so that a historic decision in our favor could come about.

In my next post, I'll summarize these developments.

Thursday, October 14, 2010

Maintaining a Just and Democratic Society?

Yesterday, Chantal Ch√Ętelain, the lawyer representing the Conference of Quebec Judges, told the inquiry that the probe into allegations of influence peddling in the nomination of judges may have caused irreparable harm to the courts that the commission has a duty to restore.

Quebec judges are worried that the public’s confidence in the justice system has been seriously shaken by testimony before the Bastarache commission, demanding that the inquiry set the record straight about the integrity of the province’s courts.

Ms. Ch√Ętelain said, "it is also important to grasp the full extent of the competence of the judges because it gives you an illustration of their contribution to maintaining a just and democratic society."

Well from my perspective, we don't live in a just and democratic society.

Where's the justice when the majority of votes cast in an election don't have any effect on the outcome of how the seats will be distributed in the National Assembly?

Where's the democracy when a single political party is allowed to govern as if it had a majority and in reality it is only able to garner the support of less than one in four registered voters?

Before a just and democratic society can be maintained, it first must be attained!

Essentially, the question we have put before the Courts will allow the judiciary to assume its proper role as the guardian of justice and democracy by striking down the key provisions of an electoral system that turns government into a patronage machine.

Here in Quebec, the appointment of judges is no different in kind than other government appointments and the distribution of government contracts based on demonstrated loyalty, in other words, financial contributions to a political party. The whole political system is just an elaborate quid pro quo.

So, enough of the feigned discomfort of having the honor of the profession called into question, do the right thing and force this government to transform Quebec into a democracy.

Tuesday, October 12, 2010

A Pathetic Ploy to Reform Quebec's Electoral Map

Back in 2003, Jean Charest made the electoral promise to introduce elements of proportionality into the voting system. Thereafter, draft legislation was tabled and a special commission struck to consult the public with regard to the proposed changes to see if they respected the two principles of equal voting power amongst voters and representation for the regions. The report from the commission rejected the flawed model and the matter was then referred to the Director General of Elections, who delivered a report that offered the means to improve the model, which was then quickly shelved.

In the meantime, the Director General of Elections was given the onerous task of drawing up a new electoral map using the first-past-the-post method in which it was obvious that to respect the constitutional limit of the relative number of electors per riding that there would be seats lost in the peripheral regions and seats added to the more populous regions surrounding Montreal.

While this was being done, the Liberal government introduced legislation that would have maintained the number of ridings in the peripheral regions -- essentially turning them into the equivalent of rotten boroughs -- but would have surely brought on litigation challenging the constitutional legitimacy of such a move.

Undeterred, the Director General of Elections went ahead and drew up the new electoral map respecting what he believed to be the constitutional parameters guiding the exercise, delivered his map to Quebec's National Assembly, only to be accused by two Liberal Ministers of betraying the regions and to have performed his work in a manner beneath the dignity of the institution he represented.

As could be expected, showing himself to be a man of honor, Marcel Blanchet, the Director General of Elections tendered his resignation.

Since then, the Premier of Quebec, Jean Charest, went on to make a public declaration at a meeting that regrouped Quebec's municipalities to the effect that if the outlying regions didn't want to loose any of their deputies they would have to make some noise in order to put pressure on the Parti Quebecois to change it position so to support the legislation that would keep the number of seats there but at the price of giving Quebec what would be without question the worse electoral system in North America.

What I find truly pathetic in Charest's gesture, over and above the fact that the Director General of Elections's resignation made no impact whatsoever on his understanding of the situation, is that he transfers the responsibility of avoiding the negative consequences of his government's failure to change the electoral system to the people that are the most adversely affected by maintaing the first-past-the-post system.

In short, by maintaing single member districts without changing the number of seats in Quebec's National Assembly means that it is inevitable that given Quebec's demographic changes that there will be a loss of seats in the regions experiencing a loss of population. Moreover, the affected regions bear the brunt of the loss without any compensation.

What the "protesters" haven't been made aware of is the fact that if Quebec were to adopt a proportional electoral system, any loss of single member districts would be made across the entire electoral map and those seats lost would be transferred to a national list from which the peripheral regions could gain additional representation.

But this would require Jean Charest to come clean about his failure to respect an electoral promise, something as unlikely as his government calling a public inquiry into the relation between the construction industry and the financing of political parties in Quebec.

Vivre le Quebec. Vivre le Quebec sans Jean Charest.

Sunday, October 10, 2010

In Desperate Need of Fresh Air

While watching the news about the rescue efforts to free the Chilean miners trapped below the surface of the earth who are patiently waiting for a rescue tunnel that would allow them to escape, I find myself thinking that this is an apt metaphor for how we the citizens of Quebec live our lives within our political system.

We too are confined. Yes, we can move about within the parameters of a society that offers the choice of either being governed by a political party rife with corruption or one that is stuck in the past with its quixotic quest for independence, but we cannot escape.

Collectively, we cannot move beyond these options and, as a result, our fundamental democratic right to self determination is denied.

This week rumors of the emergence of a new political party spread quickly throughout the mainstream media. Two former ministers of the Quebec Independence Party (Parti Quebecois), Francois Legault and Joseph Facal, who are associated ideologically with the former Premier of Quebec, Lucien Bouchard, who recently stated that he no longer believed that independence was realizable, are said to being laying the groundwork for a new party that would be a right of centre, nationalist party that wouldn't seek to establish Quebec sovereignty.

Credible Francophone nationalists wanting to turn the page on the obsession to create an independent state. Indeed, this is a breath of fresh air.

However, lest we get our hopes up, it is rare that an emerging political party can dislodge one of the two parties that offer an option of forming a government. It happened twice during the twentieth century in Quebec and has yet to happen in Canada since confederation. In our current electoral system, votes cast for smaller parties seldom transfer into seats in the legislature and when they do, rarely do they change the balance of power. Quebec has had only one short-lived minority government within the last century.

Effectively, this week's political analysis concerning the possibility of the formation of a new political party quickly transformed into the question of which of the two established parties would be more adversely affected. In other words, would the splintering off of votes in favor of the new party mean that more Liberal or PQ candidates would get elected?

So much for the breath of fresh air. Once again the dearth of viable political options within a political system that is a vestige of the British Empire stifles the legitimate expression of democratic choice.

To escape this political prison, we also need an escape tunnel.

Essentially, our appeal to the courts is a petition that would allow Quebecers to escape the confinement of being dominated and ruled authoritatively by a two party system. Already, we have lost approximately one half of the electorate who can no longer be bothered to cast their votes.

By supporting our motion to have the first-past-the-post voting system declared unconstitutional, the courts would, in effect, create the political equivalent of a path that would allow the Quebec population to move toward the capacity to govern themselves democratically.

Wednesday, October 6, 2010

Welcome to Taking on the System

Our political system in Canada concentrates power in a relatively small political and financial elite. This is done by using an electoral system that is profoundly undemocratic. Majority governments are formed with the support of less than one quarter of the electorate.

Moreover, more than ever, Canadians are feeling that politicians advance the vested interests of the few before the well-being of the many. Indeed, that's how the system was designed to function.

Yet, a growing number of Canadians refuse to accept this outcome and demand qualitative change to the electoral system so that it brings about electoral results that accurately reflect the popular vote. No less than four referendums have been held in Canadian provinces in which a competing model that offered more proportional results was offered as an alternative to the first-past-the-post method. In a fifth province, Quebec, draft legislation was tabled that would have introduced elements of proportionality into the province's electoral system.

In each instance, efforts to make the electoral system more equitable were thwarted. For the most part, dubious practices were implemented by the ruling political party in each respective province to ensure that the status quo remained. These practices include pathetic public education campaigns, the imposition of supra majority thresholds, and conducting the referendum in a manner where it would next to impossible to meet the required participation rates.

Despite these setbacks, it is evident that the problem remains and that our politicians left to themselves will not change the system.

Having foreseen the unlikely probability that politicians would act in a manner contrary to their self interest, we decided to go another route and deposed a motion in the Quebec Superior Court in 2004 that sought to have the offending articles in Quebec's Electoral that are responsible for bringing forth such a discriminatory voting method to be declared null and void. Essentially, we are asking the Courts to determine whether the voting system in use in Quebec and across Canada respects the equality guarantees inherent in the voting rights protected by the Canadian Charter of Rights and Freedoms.

The wheels of justice move slowly but surely. To date, to use a hockey analogy, we are tied at the end of the first period. We won the first stage, having our case ruled to be admissible, but we lost the second stage, the Court did not rule in our favor in the first instance. We are now at the beginning of the second period, waiting for our court date to be set for our appeal to be heard. We anticipate because of the game changing consequences if our motion were to succeed that the case will eventually be heard at a third instance, the Supreme Court of Canada.

Now that we are just a few months away our next court date, I've decided to maintain a blog that chronicles the judicial process and the roller coaster of emotions that myself as one of the principal plaintiffs experiences.

Having set out on the long voyage of a Charter Challenge that is now nearing an end, I'd like to share with you my observations on how our political and judicial system functions and what happens to an ordinary citizen who dares to take on the system.