Evidentia

As master of ceremonies at Cité Libre evenings in the 1990s, I remember introducing Pierre Trudeau’s historic defence of classical liberalism, and of his own constitutional legacy

I have long enjoyed studying classical liberalism – the whole body of political theories that promote democratic institutions and the rule of law, while advocating limits on government, and promoting the sovereign rights of the individual (for example, freedom of speech, of religion, of the press, of association, etc.). Classical liberalism is sometimes called “constitutionalism.”

Many people consider that since 1981-82, when the Canadian Constitution was repatriated from Westminster by Prime Minister Pierre Trudeau, and was redrafted to include the Canadian Charter of Rights and Freedoms, Canadians have enjoyed “more” human rights than they did before. I remember serving as master of ceremonies at a gathering of the magazine Cité Libre, on an October evening, in 1992, when Mr. Trudeau attacked a series of constitutional proposals known as the Charlottetown accord, and defended his own legacy. So I have occasionally had the chance to discuss these questions with key actors in the field.

Much as I enjoy studying classical liberalism, however, I am dismayed when I look at it in practice. In Canada, for example, human rights and justice are not universal but are actually quite selective. You may be wondering what I mean exactly. From the perspective of the rule of law, I have known people in Canada directly committing or organizing murder, sexual crimes, cartels, commercial frauds, copyright frauds, money laundering, the bribery of politicians, drug trafficking, stock manipulation and tax evasion (secret accounts abroad, shell companies). I have seen a former minister of justice brazenly organize illegal political financing, and I have seen convicted gangsters (once they got out of prison) do just the same. I remember having lunch with one bank president who boasted that a single depositor at his bank, a minister of the Lebanese government, had a $100 million deposit. It would have been extremely unlikely at the time (during the Lebanese civil war) if this deposit were anything other than the proceeds of crime, or terror. Each Lebanese minister was head of a clan or faction, and deployed his own private militia.

Actually, the strong, the rich, the aggressive, the crafty, and those able to afford high-priced lawyers, exercise their rights far more easily and effectively than ordinary members of society. As individuals wielding tremendous power, they are more “sovereign” than ordinary citizens. And some of the strong, rich, aggressive people I have known have knowingly been involved in illegal and/or criminal activities, as if their philosophy of life could be summed up in the phrase  “catch me if you can.”

At another evening organized by Cité Libre, I introduced the Manitoba Cree chief and aboriginal politician, Ovide Mercredi, who said classical liberalism’s defence of the individual ended up defending only strong and wealthy individuals in society.

Then there is the problem, in classical liberalism, of the tension between individual rights and collective rights. I remember serving as master of ceremonies at another evening organized by Cité Libre, when the guest speaker was the aboriginal politician Ovide Mercredi, a Cree from Manitoba. He passionately defended the need of aboriginals to have their collective rights protected. He said that the protection of individual rights alone, would end up strengthening those in society who were already strong, and weakening those in society who were already weak. Mr. Trudeau stood up to rebut everything Mr. Mercredi had just said, claiming that any defence of collective rights was tantamount to fascism, and would lead to incredible abuses in society. As I stood next to Mr. Mercredi during the exchange, I felt thrilled to be participating (in my modest role of master of ceremonies, leading the question and answer period) in such a memorable exchange. I couldn’t help feeling that Mr. Trudeau was exaggerating. Besides, the last word I would apply to a strategy of using the laws to better the condition of aboriginal people in Canada was “fascist.”

I wonder whether ordinary people in Canada actually need the Charter of Rights (apart, perhaps, from its provisions against discrimination), since they abide by the laws of this country, are very rarely victimized by criminals, and never have to go to Court to defend themselves. Before the Charter became law, there were other laws in this country that already protected human rights. As countries go, I would say that Canada’s culture of relative civility also helps protect human rights, up to a certain point. I say this because I believe laws reflect people, however imperfectly, and the respect of human dignity starts with the people, and is not imposed from above by abstract laws. I also say this because I have  met only two men  who actually used the Canadian Charter of Rights and Freedoms before the Courts: (1) a leading gangster and international drug trafficker, and (2) an alleged serial pedophile. Both men invoked  their rights under the Charter, since in law they should have enjoyed the same rights as any other Canadian, and both were thus able to “get off” on a technicality.

I wonder whether the constitutionalization of human rights in Canada has actually improved respect in this country for human rights. While this constitutionalization claimed to uphold the sovereignty of the individual citizen as he or she faced the arbitrary will of the State, in many respects the Charter has increased the arbitrary power of the State over the individual. Some sovereignty!

The perverse device in the Constitution allowing this to be done is the notwithstanding clause, which can be invoked by the federal Parliament and the provincial Legislatures to override provisions of the Charter, whenever they see fit. Since I live in Quebec, I have seen on many occasions how Quebec governments have invoked the notwithstanding clause precisely in order to suppress human rights. It may sound strange to say this, but if the Charter had never been there in the first place, these governments would never have needed to override it, and citizens would have found some other way to contest bad policy. Which is not to forget that the amending formula of 1982 makes any significant amendment of the Constitution practically impossible, as if a bear trap had been placed within the supreme law of the land.

Now that I have integrated different life experiences, when I read the masterworks of classical liberalism nowadays, I am much more sensitive to the relationship between laws, citizens and communities. But I end up asking myself more questions than I used to.

For example, Montesquieu wrote that “Liberty is the right to do what the law permits.” I wonder: what if the law itself is excessive? When is the citizen justified in defying an unjust law?

Although Alexis de Tocqueville was a leading nineteenth century democratic theorist, he believed in selective rights and justice

Tocqueville wrote that “Democracy and socialism have nothing in common but one word, equality. But notice the difference: while democracy seeks equality in liberty, socialism seeks equality in restraint and servitude.” I suppose Tocqueville was here referring to equality before the law – a good idea in theory, but something that is far from being fulfilled in practice. Tocqueville also wrote that “The best laws cannot make a constitution work in spite of morals; morals can turn the worst laws to advantage. That is a commonplace truth, but one to which my studies are always bringing me back. It is the central point in my conception. I see it at the end of all my reflections.” I cannot help remembering that in Tocqueville’s analysis of democracy in America, he was highly selective in who should enjoy equality and liberty. One reason he admired America was simply its inexorable imperial push westwards, crushing aboriginals, colonizing and founding farms in the forests that had once been part of New France (the pays d’en haut, or the Michigan of today). He wished France could be like America in this respect. He had no problem with French colonial officials raiding parts of Algeria, kidnapping indigenous people (Algerians) and killing them if circumstances required it.

Then there is Lord Acton, who wrote that “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men.” So far, so good. Although Acton was one of the great theorists of classical liberalism, he also supported the Confederate side during the American Civil War, which means that while he opposed slavery in principle, he was actually willing to tolerate it in practice. Quite the position for an apostle of liberty to take! Talk about “selective rights!”

I live in a country known as one of the world’s leading democracies. Yet in Canada, human rights are selectively protected, and justice is selectively applied. The rule of law should apply to everyone. Perhaps the problem is the relative ineffectiveness of the justice system. In any case, it seems to me there is a big gap between the theory and practice of classical liberalism. How can rights be strengthened, without further weakening the position of the underprivileged, the outcast, those without a voice in society? How can the rights of individuals and of communities be reconciled? How can the strong, the rich, the aggressive, the crafty and those able to afford high-priced lawyers be prevented from exercising their sovereignty at the expense of ordinary citizens (for example, by committing illegal actions with complete impunity)? I will return to this subject.