Saturday, January 30, 2010

Canada is in Dire Need of a Constitutional Convention

Canada is in dire need of a constitutional convention. Looking southward, so does the United States. In the U.S. and in Canada, the living find themselves shackled to a past that bears little resemblance to the present. So much so, it now appears that many of the fundamental guiding principles informing the respective constitutional documents are seriously out of date such that the interpretation and application of these principles by the highest Courts of the land are leading to bizarre decisions that preserve and promote the capacity of a small elite to thwart democratic rule.

The Supreme Court of Canada in respecting the constitutional division of powers between the judiciary and the executive branch of government rendered a decision in the Omar Khadr case in which a violation of the most central element in our Charter of Rights and Freedoms, the right to life, liberty and security of the person as articulated in Section 7 of the Charter is trumped by the feudal right of the Prime Minister’s royal prerogative over foreign affairs, which includes his right to unilaterally declare war.

In other words, although Mr. Khadr’s legal rights have been clearly violated, the Prime Minister is not under legal obligation to provide an effective remedy like repatriation to address this flagrant violation of a Canadian citizen’s rights in which the Canadian Government actively participated. In this instance, there is a fundamental flaw at the heart of our constitutional law.

What makes this result even less palatable is the fact that the Prime Minister has utilized another of his royal prerogatives to prorogue Parliament, effectively suspending democratic debate concerning this repugnant turn of events. As a result, democratic dissent cannot be presently expressed in the institution to which the Prime Minister is accountable. Consequently, Canadians through their elected representatives are unable to demand that the Prime Minister justify his refusal to intercede on behalf of one of their fellow citizens.

With a similar disregard for the principles and modern practice of democracy, the US Supreme Court interpreted the Bill of Rights’ first amendment stipulation that Congress shall make no law abridging the freedom of speech to include the right of corporations to spend without limits during electoral campaigns. Given the financial capacity of the corporate sector to influence electoral results, the Court effectively put into place a path in which democratic rule gives way to corporate rule in the United States.

In summary, the Court empowers the corporate sector by use a conception of freedom from an 18th century text to escape from the control of the people and their democratic institutions that grant corporate charters. In exercising this right to freedom of speech, which is fortunately constrained in Canada, corporations, including those offshore, will gain final parasitic control over the American system of governance.

Faced with the reality of having their basic democratic rights superseded as a result of the application of feudal practices, it is time for Canadians to exercise their right to be governed by laws that reflect the reality of their generation and not to be enslaved by the deference to the reality of an out-dated past. We are no longer a British Colony. The ratification of our Charter of Rights and Freedoms brought about our legal independence. We are free from British rule.

To become a modern democracy, we need a modern constitution, one that recognizes basic democratic principles and puts them into practice in the manner that our elected assemblies function. It is time to convene a constitutional convention in order to rewrite that part of our constitution that is derived from the British North America Act.

As a people, we owe it to ourselves and to future generations to create a system of governance suited to the reality in which we live and to which we give our consent until that time arrives when a rewritten constitution will be again subject to further major change as the society evolves. In this way, Canada’s Constitution will become a living document that reflects the desires of Canadians to live collectively guided by their shared values.

In convening a constitutional convention, Canadians should follow the example of the Scots who, in their desire to be ruled by Scottish law rather than English law, initiated a claim of right, which eventually led to the devolution power from Westminster and the creation of the Scottish Parliament.

Sunday, January 17, 2010

The Sovereignty of Privilege versus the Democratic Rights of the People

The evolution of democracy in the Anglo-American realm has not yet reached its end state. Here in Canada, as well in the US and the UK, the rule of the majority has not been attained.

In fact, Canadians elect a government where the leader of the political party that has won the greatest number of electoral fiefdoms assumes the privileges and prerogatives of the sovereign. The prorogation of Parliament is part of the prerogatives bestowed by Canada’s Sovereign Monarch, Queen Elizabeth, to the Prime Minister through the Queen’s representative in Canada, the Governor General. As a result, the Prime Minister can shut down Parliament as he sees fit, and this all well within the rule of law, even if the Prime Minister reigns with only a minority government.

Sounds like we are still stuck in our feudal past to me.

Historically, the evolution of democracy in the English-speaking world has been a gradual transition from the power of privilege towards the democratic rights of the people, and this has largely played itself out through the evolution of the electoral system.

Essentially, the right to vote was extended to the white, Christian, landowners as a counterbalance to the hereditary privileges of the sovereign monarch, but throughout its evolution the right to vote has been used first as means to protect the privileges of a group of landlords against the powers of royalty and then later against the claims of the masses, the demos.

At the heart of this political struggle is the preservation and slow modification of the dominant social paradigm and the privileges of those who profit the most from the political system. Within the realm of human rights, it is hard to imagine today the legitimacy of a political system that did not grant the franchise to women, men without property, or members of ethnic and religious minorities. However, such were the conditions to be found in Canada at the time of confederation.

Over time, the franchise was extended to include the entire adult population, and this evolution saw with it a greater redistribution of the nation’s wealth in the way of transfers of revenue to fund social programs targeting the less fortunate. Yet, if we look elsewhere in the developed world, one cannot help but notice the those countries that continue to use the electoral systems using the Britannic method of first-past-the-post are those countries (Canada, US, England, Australia) that continue to have greater levels of inequality within their respective societies.

The reason for this glaring anomaly is the territorial bias built into the electoral system that allows a privileged class to usurp political power from the majority in order to maintain the privileged position of not only their financial status but also the manner the political economy is organized.

Since feudal practice has given way to democratic principles in theory, in practice the struggle for power shifted to the control of the rules of the electoral game. Essentially, in the Anglo-American realm, there exists a bias toward the landlord, the lords of the land, which is maintained by not aggregating all of the votes when they are cast regardless of where they are cast and by drawing up the electoral map to maximise the number of favourable fiefdoms that can be extracted from the territory. In other words, representation is skewed towards those who have the greater means to wage an electoral campaign and the values that they hold at the expense of those of more limited means and their corresponding values – private interest trumps the common good.

No where is this more evident than in the inability of either Canada or the United States to adopt effective legislation to combat climate change. In both countries, the majority of citizens desire effective legislation to be enacted. However, the territorial bias of the political systems will not allow the private interest of those who desire to amass as much wealth as they can at the expense of the environment to be overturned.

In Canada, the parliamentary system allows for a minority to usurp the power of the majority by transferring political power to the party that wins the greatest of electoral districts. In practice, neither of the two principal parties can expect to win this contest if it promises action to fight climate change since private interest will devote its considerable resources to counter any serious attempt to enact environmental legislation that would somehow limit economic growth. What makes this situation completely at odds with democratic principles is that the will of the majority can be overturned by even a minority government.

In the US, the will of the majority is thwarted by the disproportional power given to the smaller states, each state has two senators regardless of its population, and the supra majority (60%) required to adopt legislation. For example, it takes 60 votes in the Senate to break a filibuster on controversial legislation, and 41 votes is in effect a blocking minority. In fact, states that together hold about 12 percent of the US population can provide that many Senate votes. So, if you are thinking that we can expect to see effective climate change legislation to be adopted in the US this year, think again.

In summary, the territorial bias that grants representation to those who control a territory at the expense of its inhabitants renders both systems profoundly undemocratic.

Yet, representation should not be qualified by whether one’s vote belongs to the winning side. Each and every vote should be given relative equal weight regardless of where it is cast. However, the first-past-the-post voting method does not allow this to occur. It was conceived to transfer to transfer the sovereignty from the masses to the most powerful. If the demos wants to assert its legitimate claim to political power, it must force the political class to change the electoral laws. Otherwise, a privileged few will continue to rule.

Thursday, January 14, 2010

Recalibrate the Economy: Abandon the Obsession with GDP and Get Back to Work

Indeed, with the issue of climate change becoming ever more urgent and a growing recognition that economic growth does not make people any happier, there are growing calls for growth and the endless consumption of ever more material goods to be downgraded as political goals.

According to the Prime Minister, proroguing Parliament would allow for the recalibration of the economy. It seems that we have one zombie idea that refuses to die giving justification for an equally zombie-like political manoeuvre.

Now that the lost decade of the zeroes is over, we should be moving away from the ideological cant that got us into such a mess. Notwithstanding that continued economic growth is incompatible with a sustainable environment and that once a certain level of material well-being has been reached, as is the case with Canada, increased material wealth does not translate into greater happiness for the population, thinking we can just grow our way back to economic health is a remnant of an outdated economic approach.

In fact, the last decade saw robust economic growth as measured by GDP in North America despite the onset of the recession in the last quarter of 2008. However, there was no increase in the number of private sector jobs in the US despite a growing population; the median income dropped; the Standard&Poors 500 Stock Index had a negative return over the decade, and this is before inflation is factored in; there were more than a million mortgage defaults during the last year; two of the big three car makers went bankrupt; private and public pension funds encountered huge losses; and Canadian and US governments ran the largest deficits in their history.

Its time we exorcise the idea that GDP growth alone brings about increased prosperity from the land of the dead economists and move on to political-economic goals that can be demonstrated to lead to an increased well-being of the general population and not simply the top 1% of revenue earners.

It should also be clear that the globalization of world’s economies has led to previously unseen levels of volatility, where no nation controls its economic levers. What happens in one part of the world can have significant impact on another with little or no warning.

Given such conditions, the pursuit of economic growth as an objective in itself should be downgraded in favour of policies that promote economic stability and resilience. Consequently, increases in the GDP that are a result of increased levels in public and private debt, or the substitution of economic activity in the financial sector to replace lost activity in the manufacturing sector due to the offshoring of manufacturing jobs should not be taken as indicators of better economic performance no matter what our politicians would have us believe.

Certainly, we should be concerned with what the Parliamentary Budget Officer, Kevin Page, has identified as Canada’s structural deficit. According to Mr. Page, economic growth without an increase in existing tax rates or a significant decrease in expenditures will not generate sufficient revenues to eliminate the deficit.

I for one would like to see the imposition of a financial transaction tax and a capital gains tax tied to the length of time one holds a security as possible measures to generate new revenues and to bring stability to the real economy.

However, for this type of political debate to take place in a meaningful way Parliament must be in session, for it is here where the people’s elected representatives can legitimately work to tackle the problem of structural deficits head on. Instead, with Parliament prorogued, we can expect to see a show and sell tour leading to the tabling of a budget, with a strong possibility that we will plunged into yet another general election, which will resolve nothing considering how votes are distributed regionally.

Constitutional convention anyone?

Sunday, January 10, 2010

Only the Courts Can Bring an End to the Regime of the Strongman in Canada

In a previous post, I put forward the idea that Canada’s system of governance is simply a more sophisticated version of the rule of the strongman to be found in medieval Britain. In short, the winner-take-all format of elections in Canada, embodied by the first-past-the-post method, puts aside any notion of the democratic governance in favour of the rule of those who can muster the necessary resources to win the most territorial fiefdoms (electoral districts). In other words, the electoral system’s bias toward territorial representation at the expense of the fundamental democratic principle that all votes should count and count equally allows a well-heeled minority to usurp the power of the majority.

During the last decade, the number of citizens who have come to realize that our present system is fundamentally flawed grew exponentially. Indeed, there were four referendums, two in B.C., one in Ontario and one in P.E.I. that were organized around the question of changing the voting system. Importantly, each of the referendums was set up in a fashion to ensure that reform would not come about. Essentially, the ballot question was reduced to, "is the suggested model the way to change the system."

Our politicians know all too well that it is much easier to gain a majority by uniting the opponents to a single option than to convince a majority of its merits. As a result, this type of referendum has the effect of saying no to a particular manner of solving the problem, but leaves in place the set of conditions that gave rise to the referendum in the first place, which is exactly what the politicians who arranged these bogus forms of public consultation desired.

This desire to perpetuate the status quo arises from the way in which the spoils of electoral victory are to be divided in the present system. True to our medieval past, the control of the public purse is perhaps the easiest way to personal profit. Our political system is rife with patronage in its various forms: appointments, contracts, tax benefits, and favourable legislative intervention, to mention just a few.

When a small minority controls the public purse, the spoils are divided amongst fewer supporters, which create great institutional incentives in keeping the system in place. Indeed, if the majority were to gain control, the financial pie would no doubt be distributed more equitably, but the portion size for the well-connected would be reduced. Given the choice between having a more efficient, equitable, and effective government sensitive to the well-being of the general population and having an inefficient, inequitable, and ineffective government that rewards the chosen few handsomely, it should not come as a surprise that the latter wins the day.

The other thing to keep in mind is that changing the electoral system from within the existing system is practically impossible. The political class, supported by the business sector and the media, enjoys an institutional lock on political power.

Essentially, the electoral system reduces effective voting to choices between two government options, the government of the day or the opposition. Other voting options do exist but they do not lead to any qualitative change of the distribution of power. Thus, many voters who would otherwise support a third option are forced to support either one of the warring factions and have their vote count or vote for their authentic choice and have their votes rendered completely ineffective. Keep in mind that after 143 years of forming federal governments in Canada, only two clans have been successful, the Conservatives and the Liberals.

Faced with the prospect of creating a more equitable electoral system that would allow other ideological options to participate in the exercise of political power – which would break the monopolistic control of the patronage machine that the ruling party enjoys – and staying with the status quo – which guarantees periodic control through alternating roles of forming the government or the opposition – it should not also come as a surprise that despite the obvious flaws inherent to the electoral system the ruling tandem is not inclined to change the system.

It is often said that the prospect of changing the system places those who are elected by it in a conflict of interest since they are the ones who profit the most. In other words, the fervour to make qualitative change is inversely proportional to the proximity to power. The closer you are, the less you are interested in changing the system.

If the question of how we are to govern ourselves were simply a question of political interest, the prospects of getting out from under the thumb of the strongman regime would be very bleak. Fortunately, with the adoption of the Charter of Rights, the question also carries with it matters of principle. In particular, the formation of a provincial or federal government must adhere to the fundamental principles of democracy and these principles cannot be put aside for reasons of political expediency. Moreover, in Canada, parliament is no longer supreme. Statutory law is subject to judicial review, and if legislation is found to contradict the values enshrined in the Charter, the Courts can render the offending legislation null and void.

At first glance, it would appear that the first-past-the-post does not conform to the substantive equality guarantees of the Charter; however, it will be up to the Courts to decide, most likely the Supreme Court.

With regard to section 3, the right to vote, the Supreme Court has defined this right as the right of effective representation and the right to participate meaningfully in the electoral process. In both instances, first-past-the-post discriminates against the right to vote for certain individuals.

Regarding effective representation, the formula used to turn votes into seats favours the political parties which offer the electorate the possibility of forming a government. Since majority governments are most often formed with less support than 50% of the electorate, it stands to reason that the voting power of some groups is being unduly diluted. As well, the system awards the power of majority to a minority, sometimes the party that did not garner the most votes, thereby undermining the rational connection between the means and the ends of the electoral legislation.

Regarding meaningful participation, the electoral system puts into place significant disincentives to vote for third parties. In fact, legislation that has the effect of reducing the number of votes that candidates from certain political parties would otherwise receive has already deemed to be the antithesis of the values of a free and democratic society and was determined to be unconstitutional. What remains to be done is to place the question of the constitutionality of the present voting system before the Courts.

In March of 2004, four Quebec residents deposed a motion at the Quebec Superior Court to have Quebec’s use of the first-past-the-post method to be declared unconstitutional. Having passed the test of admissibility, the case went to trial in December, 2008. Unfortunately, the trial judge did not rule in the plaintiffs favour, but he did so without commenting on any of the expert testimony or historic evidence that the plaintiffs brought to the trial. As a result, the case will go to appeal in December, 2010. We can anticipate that one or the other side will appeal the pending decision, which will eventually place this historic case under the purview of the Supreme Court.

Certainly, having the present voting system declared null and void would have major consequences for the manner in which we are governed. It should be pointed out that having first-past-the-post declared unconstitutional does not necessarily mean that a proportional voting system would replace it. Legislatures may opt for a different form of majoritarian rule brought on by the alternative vote or multiple-round voting.

That being said, it has yet to occur in public consultations in Ontario, British Columbia, and Quebec that significant interest was expressed for such alternatives. Importantly, during the process leading up to the adoption of a new voting system proponents of control and domination voting systems would have to play on an even playing field with the proponents of proportional voting systems, no supra majority requirement would impede the implementation of a new system, and the status quo will have eliminated as the default alternative. Within this context, it could be expected that the regime of the strongman would finally come to end in Canada.

If you are interested in learning more or in supporting the case, you can drop me an e-mail at