Wednesday, 14 March 2012

This is What "Democracy" Looks Like?


While disparate in origin, two separate movements are coalescing into similar shapes in this country. In Toronto, dissatisfaction with a highly unpopular mayor, particularly in progressive, circles has results in numerous attempts - many procedural, technical or legal, many outside of council chambers - may soon come to a head as a legal challenge to remove Rob Ford from office will be considered by a judge. At the federal level, populist outrage at at the so-called 'roboscandal' continues to build - again, largely in progressive circles - demanding, most vocally, an immediate Royal Commission or the overturning of the results of the 41st general election. Both are masked in a populist and deeply democratic rhetoric. The reality, however, is that these movements teeter dangerously close to a profoundly anti-democratic precipice. This, of course, sounds entirely counter-intuitive. It is anything but.


I have written previously about both of these topics separately. Indeed, I am highly critical of both Mayor Ford and Prime Minister Harper. Despite this, and while I am left on a crude political spectrum, I owe no party allegiance to either the New Democrats nor the Liberals. Part of my criticism of calls for a Royal Commission stems from the fact that such demands are, in large part, political theatre. Blind partisanship mingling with a sense of populist outrage at various scandals is a potent combination. They promote a sense of urgency in which immediate action must be taken or else dire consequence will result.

This urgency is most evident with the growing chorus of demands swirling around the robocall scandal. Swift action, however, is rarely in the interest of democracy nor of the truth. It encourages rash, unthinking behaviour, a desire for blood (if only metaphoric) and the clear identification of the guilty parties. I believe the calls of a Royal Commission to be excessive while calls for a general  public inquiry are premature.

First, Royal Commissions have a very particular purpose. They attempt to deal with large national problems that have become intractable and need to be taken out of the normal political process and turned over to experts. They are less about assigning fault and more about finding solutions. As such, it is the recommendations of such commissions that are central. As I stated before, there is nothing inherent in Canada's electoral system that requires much in the way of statutory change. Indeed, while they appear to be moving slowly, the gears of accountability are turning at Elections Canada. Additionally, Royal Commissions occur because both government and opposition agree that the issue at stake must be taken out of the normal political process and, effectively, depoliticized. It is clear with this issue, however, that a Royal Commission would only be used as political fodder to feed to opposition. With no need for substantive changes to the rules and no cross-party desire to depoliticize the issue, a Royal Commission is pointless. It is, quite simply, not the appropriate tool for  the job.

Second, a general public inquiry - which would accomplishes the same as a Royal Commission, albeit without the weight of a royal prefix - is a last resort. Inquires are called when the justice system or the mechanisms of oversight fail. They are designed to get to the root of an issue and, as with Royal Commissions, provide a template for avoiding a repeat of such occurrences. What seems to be lost on observers is that simple fact that, until the 2011 federal election, the Canada Elections Act has been effective - as has Election Canada, the body charged with overseeing it - as a means of ensuring the integrity of our elections. 2011 is a criminal aberration, a deliberate attempt to flout the law, not a recurrent feature. More importantly, the existing mechanisms of accountability and oversight - first Elections Canada and then, if warranted, the judicial system - have yet to run their course. If, once all the allegations are verified and a tangible effect on the election are to be found, a public inquiry could be called if there is evidence that there is a conspiracy beyond local party organizers breaking the law to eek out some sort of benefit at the poll. There is a threshold of wrongdoing that must be met. Sadly, it appears a desire to implicate the political centre - and in particular Stephen Harper - is pushing for a very public witch hunt.

In Toronto, numerous judicial measures have  been attempted to undermine the mayor and his administration, largely in the form of compliance audits of election expenses. The most recent attempt, and the one that may prove the most effective, attempts to prove that the Ford violated conflict of interest laws, rules which, if proven, would result in compulsory ejection from office. While the case has merit, the fact that a duly elected city official can be removed from office as a result of a $3000 charity donation is extremely trouble. Here the populist message is one of equality and fairness: the law applies to everyone. There is no room to quibble with this message only with what underlies it.

Each of these cases involves degrees of populism. Both claim to be promoting commons themes of respect for the law, fair play and, above all, democracy. Yet while they may be cloaked in populist democratic rhetoric, what underpins them is, in fact, deeply anti-democratic. Take the Ford example. Unable to defeat the mayor (at least until very recently in council), it has been through extra-political means - such as compliance audits - that 'political active' foes have sought to undermine the mayor. This should ring alarm bells as the judicial processes are used for political ends and, in the process, merely serve to politicize the judiciary itself. Moreover, such moves attempt to undue the democratic will of the electorate essentially by the back door. In Toronto this means the disenfranchisement of hundreds of thousands of citizens who legitimately exercised their right to the franchise and marked a ballot.

A similar scene is unfolding at the federal level. Stuck for a least four years with a Harper-led Conservative majority government - not an uplifting prospect, but one backed by the electoral mandate - avenues external to Parliament - where the opposition has largely been ineffective at fulfilling its constitutional rule - are now being deployed. One of the tools in the arsenal has the potential for severe blow back and collatoral damage. To destroy Harper's electoral victory it becomes necessary to undermine the entire electoral process by casting 308 ridings into doubt. The move, touted as something which is in the interest of democracy, risks disenfranchising millions of Canadians based on (as yet) unverified claims of fraud. This is not to suggest that the claims are not serious, but it does not serve the interests of Canadians to bring down the entire electoral house - and its legitimacy - in order to remove a few termites. True respect for democracy and the rule of law  requires that the investigative process as mandated by the rule of law itself be completed. By politicizing the investigative process - and casting aspersions upon the work of Elections Canada or the RCMP - the system is only further eroded and democracy undermined.

The danger when a pendulum swings widely in one direction is that the countervailing forces opposing propel it equally far in the opposite direction. Neither of these extremes is hospital grounds for a democratic polity. Public inquiries and Royal Commissions are appealing to partisans out for blood because they can be effective  rhetorical tools to undermine a government. They are, however, a poor substitute for proper place for such accountability: Parliament itself. The ineffectiveness of the opposition and the stalwart denials of the government make such extra-parliamentary tools more appealing. Fighting pitched battled via soundbite in the media also brings short term gains. The immediate problem is that the normal channels of oversight - through Elections Canada and then through the courts - have barely begun and are certainly not exhausted. Mob mentalities are quick to hold, but their populist facade of democracy is a false one. It masks a deeply anti-democratic potential. While democracy requires accountability - accountability beyond finding the guilty and subjecting them to penalty - this can only be served by following due process of law and exhausting proper channels first. Public inquires are a last resort. Populist anger can shake a faulty foundation in its search for justice, but we must be careful not to bring the house down on top of us in the process

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