The power of appointment of the government and ministers is in crisis

In Quebec, we have just witnessed a real crisis in the power of appointment of the government and ministers. Under our laws, they are called upon to fill thousands of positions in ministries, institutions or committees. According to our public law, the power of appointment is in principle a “discretionary power” (Supreme Court, 1989, 1991), which can however be framed by criteria, a procedure or a consultation process. This power is also a responsibility, for which the government or ministers must be accountable to elected officials. It is not “a simple formality”, as people have written.

Recently, there has been criticism of the appointments to the Expert Committee on Gender Identity, to the presidency of the CAPFE (Accreditation Committee for Teacher Training Programs) and to the council of INRS, constituent of the University of Quebec. In this case, it is on the grounds that the government would not have appointed the right person chosen by the teachers, the union or the students.

We spoke of censorship, of violation of university autonomy! However, in the Charter of the University of Quebec, from 1968, it is clearly written that it is the government which appoints people, on the recommendation of the minister, after consultation… A consultation generates a recommendation, a suggestion or an opinion , but that does not create a power of appointment.

The case law of the Court of Appeal and the Supreme Court is very clear on this. Opinions resulting from consultation or recommendations are not decisions binding on the government or the minister. As the Court of Appeal (1983) points out: “A recommendation made to the Minister under section 18f) is not likely to strip him of the decision-making powers conferred on him by law. On its face, a recommendation remains just a recommendation; the ultimate decision, according to the law, rests with the minister himself under article 3d). » According to the Supreme Court (1992): “It would obviously be inappropriate to equate the word “recommendations” with s. 52 (1), to a binding decision. »

The minister was criticized for not giving reasons for her refusal to recommend this or that candidate. However, in our law, the authority is only required to give reasons for its decision when the law expressly requires it. Then she gave explanations. The Quebec Federation of University Professors (FQPPU) sees in the behavior of Pascale Déry a violation of the Academic Freedom Act adopted by the Assembly in June 2022.

This law is called the Law on Academic Freedom in Universities and not the Law on the Autonomy of Universities from the Government, as has been claimed. It does not speak of the autonomy of universities, but guarantees the right of academics “to exercise freely and without doctrinal, ideological or moral constraint, such as institutional censorship, an activity by which it contributes to the accomplishment of the mission of an educational establishment. [… ] This right includes freedom: 2° of research, creation and publication; 3° to express one’s opinion on society and on an institution, including the establishment to which the person belongs, as well as on any doctrine, dogma or opinion; 4° to participate freely in the activities of professional organizations or academic organizations.”

How does the fact of not being appointed by the government to the INRS council constitute, for Professor Helly, an impediment to continuing her quality research or her activism, how does this constitute “ a constraint ” ? I do not understand the Federation’s reading of this law. It would be good for her to consult specialists in public law.

It was the National Assembly which wanted in 1968 to limit the autonomy of the University of Quebec. In 1971, the same Assembly proceeded differently in the case of the Laval University Act, where the vast majority of members of the board of directors are appointed by peers, except for three government appointment positions.

In 2022, the Assembly could have amended the UQ Act if it had deemed it incompatible with academic freedom. If the members of the UQ want to elect their own president or rectors and nominate their candidates to the councils, they should have their law amended. The current president, former minister, eminent jurist and specialist in academic freedom, is well placed to know this.

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