Contesting the Democratic Legitimacy and the Political Authority of the Quebec and Federal Governments

Two recent events cast serious doubts about the democratic legitimacy of our political institutions and call into question the nature of the political authority they wield.

In Quebec, the Charest government refuses to hold a public inquiry against the wishes of the vast majority of the population into the corruption within the construction industry and its ties to the financing of Quebec's political parties. At the federal level, the unelected Canadian Senate voted down the comprehensive climate change legislation passed by the majority of members of the elected lower house.

Indeed, this turn of events in Quebec demonstrates that the majority of citizens do not hold and exercise political power in Quebec and that the same can be said of the majority of the elected representatives in Parliament.

What does this say about our political institutions?

At a fundamental level, Canada's constitutional monarchy is undemocratic and its political authority is derived from a show of force rather than from the will of the majority of its citizens. Popular elections are held, but they do not yield electoral results that reflect the popular will. On the contrary, the electoral system is designed to usurp the power of the majority and transfer it to a minority. In between elections, there is little that can be done to change this state of affairs.

How does this come about?

In short, our electoral system uses the single member plurality (SMP) voting method that brings about a system of governance in which the most powerful political minority rules as if were a majority.

As could be expected, this electoral system was conceived during the Middle Ages, an epoch that privileged those who exerted territorial control and little attention was paid to those who lived and toiled upon the land. Essentially, the SMP method reproduces this feudal relationship with regard to political power.

For instance, in the Middle Ages military force established who gained control over disputed territory, and to the winner went the spoils of victory. Similarly, in our electoral system, the spoils of victory, effective representation, go to the winner of the electoral campaign in a winner-take-all manner.

It doesn't matter if the majority of citizens/serfs in the territory/electoral district voted against the the candidate who garnered the most votes. Their voices do not matter and all their votes are discarded as if they were not cast at all. Regardless of the total lack of democratic legitimacy in the process, the newly elected deputy takes his or her place as the territorial representative in Parliament.

The primacy of territorial control is then leveraged to form a ruling government. Again, the formation of the government is not bound by the manner in which the citizens/serfs actually voted. The vast majority of Deputies in the House of Commons do not have the support of the majority of their constituents. All that matters is to identify the political party that acquired the most territory as expressed by the number of electoral districts captured in the electoral campaign. To the winner goes the right to rule the land.

As you could imagine, using an electoral method that actually discards what is most often the majority of votes cast by the citizens/serfs compromises the democratic legitimacy of the government that is duly formed. Beyond the recurrent over and under representation of the different political parties in Parliament, there exists a fundamental flaw: the formation of what is misleadingly referred to as a majority government does not require the support of the majority of the electorate. In fact, it is rare that a majority government even has the support of the majority of the citizens that cast their votes, let alone those who are eligible to vote.

Needless to say, this becomes problematic, especially in terms of how political authority is exercised. In a democracy, as a matter of principle the citizenry is bound to accept the will of the majority as long as fundamental human rights are respected. What is the guarantor of respect for political authority if it does not stem from directly from the people but instead is obtained from a democratically flawed process? Tradition? Coercion?

Personally, I find it unacceptable that such a state of affairs is allowed to continue under the guise of democracy. So much so, in collaboration with three of my colleagues, we decided to challenge the democratic legitimacy of the electoral system that brings forward in our eyes a system of government that can only be described as rule of the few over the many.

What allows for this challenge is the adoption in 1982 of Canada's Charter of Rights and Freedoms. In particular, section 3 of the Charter guarantees the right to vote. As defined by the Supreme Court of Canada, this right goes beyond simply the right to place a ballot into a box and includes the right of each citizen to effective representation and the right of each citizen to participate meaningfully in the electoral process and that these rights are not subject to the political preferences of the majority.

Perhaps, the majority of Canadians prefer to maintain the present system, but this preference does not give them the right to deny effective representation to a significant minority of voters. For example, in the last federal election approximately a million people voted for the Green Party, yet these electors have no effective voice in Parliament. How can this be squared with the right of each citizen to have effective representation? It cannot.

Similarly, where is the substantive equality in an electoral process that confers effective representation only on those electors whose votes establish a candidate's plurality at the expense of all other electors? This means that the system gives strong institutional incentives to people to vote for political parties that are in a position to potentially form a government at the expense of those parties that are not. Consequently, many electors who would otherwise vote for a smaller party if there vote would be used to establish representation don't vote at all or choose to vote strategically by substituting their authentic choice for a strategic vote. In either case, this situation systemically reduces the number of votes a candidate from a small party would otherwise receive, a situation already judged to be antithetical by the Supreme Court of Canada to the values informing a free and democratic society.

At the heart of the issue is whether the electoral system that we inherited from our colonial past conforms to the values of a free and democratic society. Even the British have their doubts as demonstrated by the holding of a nation-wide referendum in the UK on the continued use of their archaic first-past-the-post voting method in May, 2011.

At the very least, both at the provincial and federal, electoral systems must incorporate some mechanism that enables each citizen's vote or preferences to be aggregated so each vote is used in the formula that determines representation and no votes are simply discarded. This would restore democratic legitimacy to our system of governance.

On February 8, 2011, at the Quebec Court of Appeal in Montreal, arguments will be heard to overturn the decision at the lower court that did not support the motion to have our present voting method rendered null and void. With lawyers of the stature of Julius Grey and Peter Rosenthal, both having successfully obtained seminal decisions on democratic rights issues from the Supreme Court of Canada, this promises to be a historic confrontation between the desire to maintain our colonial past and the desire to evolve into a modern democratic society.