In her excellent editorial, Stéphanie Grammond tells us about the use of the notwithstanding clause1. This prompts the following comment.
In the 1930s and before, populists were elected to power in Italy and then in Germany. Quickly, they monopolized absolute power by claiming that they were acting on behalf of the people. Then, they excluded religious, linguistic and sexual minorities from this people, first by limiting their economic and civic rights, then by prohibiting them from residing in the territory. Eventually, the right to live was taken away from them.
At the same time, any intellectual, any political opponent who dared to speak out against the forces in power ran the risk of persecution, legal or otherwise, of internment and execution. Eventually, a war of conquest was launched in order to secure living space for the German people.
I will spare you here the description of the horrors committed in the name of the people. World War II was an unparalleled disaster. Exactions inside Germany were as much.
In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. This was an obvious reaction to the events cited above. After the French and American constitutions of the XVIIIe century, it was the beginning of a new wave of recognition of the need to protect the rights of minorities against the will of the majority or simply against the behavior of dictatorial regimes.
Canada waited a long time to enshrine this protection in its constitution. It was not in 1982 that it adopted its Charter of Rights and Freedoms. Quebec had preceded it, with its Charter of Human Rights and Freedoms adopted in 1975. Unfortunately, the latter does not have the force of fundamental law: any government can modify it and weaken it by a simple law adopted by the ‘National Assembly. This was done recently, by laws 21 and 96.
Fuzzy notions
By expressing his objections to any legal challenge to these laws, the Premier of Quebec claims to be acting on behalf of the people and the Quebec nation. Let us first note that these two notions are vague and defined nowhere in legal terms. Rather, they express political and social wills and broadly shared and respectable objectives, it seems to me.
However, the government in place could only count on 41% of the votes in 2022. Even those who voted for the party in power will have to ask themselves whether it is acting on their behalf when Quebec contravenes basic freedoms, individual rights, by invoking the mirage of the Quebec people.
The argument often heard is that the rights of the majority must be protected. However, these rights do not exist. If the government exists thanks to its majority in the house, this does not confer on it any fundamental right other than the right to govern and to legislate.
The central idea of fundamental rights is that the majority, political or demographic, must respect the rights of minorities, not the other way around.
Among the central notions of the rule of law are judicial independence and respect for the judgments of the courts. Every time we hear a minister publicly attack a judicial decision or the behavior of a judge in the exercise of his functions, the alarm bells must sound, the red lights must come on.
Also, the duty of governments is to protect the rule of law. Every Minister of Justice has a duty to monitor whether the laws, including the Constitution, are respected. In this sense, he has a duty that goes beyond that of a simple politician. The Wilson-Raybould affair taught us that even a prime minister (along with his advisers) has to hold back when it comes to exercising that responsibility. It is no longer just about the political contest and the exercise of power: the rule of law is at stake.
If the Minister of Justice of Canada has questions about the use of the notwithstanding clause, his decision does not rest with the premiers. That of Canada and that of Quebec must be silent, in the name of the rule of law.
At the head of a true democracy, the Quebec government will have the right to plead its case before the Supreme Court. Then, he will have the obligation to respect the verdict. Its mandate, real or constructed, to work for the continued emancipation of Quebec changes nothing.