Tuesday, 19 June 2012

The Democratic Bypass

Recently there have been a spate of troubling suggestions by a number of groups - left, right and centre - advocating for a complete bypass of proper democratic mechanisms in order to achieve certain policy goals. What has spurred these moves has been the rejection of these groups and their desired outcomes by duly appointed representatives in each of their various constituencies. This trend is alarming as it signals, at least in part, that individuals and organisations no longer regard elected assemblies as being repositories of legal or moral authority. If an outcome flies in the face of one's expectations, the defeat is seen as inconvenient but not final. It amounts to a collective bypassing of the democratic process. In essence, these groups are attempting to go over the heads of the people.

Of course, not all attempts at circumventing assemblies are illegitimate. Their are times when there are just grounds for seeking remedy. Governments that overstep their bounds and violate constitutional principles or rights laid out in the Charter should be brought to account by courts. Such instances, however, remain exceptional and should not be used to override basic pieces of legislation or public policy. To do so cheapens rights and abuses a remedy that is already subject to much criticism. Additionally, public pressure may be brought by protest to focus attention on abuses, but ultimately, regardless of the outcry, the elected assembly remains the final arbiter of public policy, unless an abuse can be proven in court.

Toronto's boisterous mayor, Rob Ford, has publicly (and woefully) stated that decisions of Toronto's city council - the amalgamation of its peoples' collective political will - is 'irrelevant' and should be ignored by the province and its arms-length transit agency, Metrolinx. As is often the case, however, Ford contradicted his own claim, demanding that the province respect the will of council and allow the sale of surplus TCHC houses. Ford's contradictory claims can easily be attributed to his bravado and the brashness of his approach. As foolish as his claim to irrelevance was, there were few, apart from his supporters and right-wingers, who truly took his statement as fact. 

Two recent instances have been more troubling. In both, groups marginalized to various degrees by the government of the day have attempted to vent their frustration to a higher order. Toronto Cycle - formerly Toronto Bike Union - has sought to remedy what it sees as the inadequacy of  policy made in Toronto regarding cycling infrastructure by taking its complaint to the province of Ontario. The complaint stems from the rejection of biking as a legitimate means of transit by the Mayor - indeed, Ford sees bikes as mere leisure - and the removal of existing bike lanes on Jarvis Street and alterations on other thoroughfares. The policy may be wrongheaded, based on anecdotal evidence and may do little to enhance the roads for drivers as claimed, yet however ill-thought the policy itself, the legitimate means to fight it or have it overturned is at council.

Certainly these advocates are correct: municipalities are creatures of the provinces. This is a constitutional fact. However, what is clear from the spirit of the text and subsequent practice is that it was never intended for the provinces to directly administer cities from the centre. Ontario, through a host of legislation and the establishment of numerous agencies, boards, and commissions (the Ontario Municipal Board for instance), essentially allows local administrations to govern local affairs. Indeed, it establishes in legislation the principle of local democracy by mandating the establishment of council and an executive. Moreover, it includes means of challenging the decisions of council through the aforementioned agencies, boards and commissions. In short, appealing to Cabinet to challenge policy runs counter to democratic practice and attempts to imprint onto the province a role as direct administrator it never intended for itself. Constitutionally Ontario has the power to intervene in any aspect of a city's affairs, this does not, however, mean that doing so is justified.

Another group dissatisfied with recent public policy is the Ontario Medical Association (OMA). In an attempt to bring the deficit somewhat closer to balance, Ontario's premier, Dalton McGuinty, enacted a series of cuts to  to fee rates for the province's doctors. In fairness, it did in a less than consultative manner. Nevertheless, it remains wholly within the purview of the province to legislate in this way. Predictably, the OMA immediately launched a 'Charter challenge', claiming that doctors' rights had been violated due to the dearth of consultation. As with bike advocates, this attempt to go over the head of the peoples' elected representatives is wrongheaded. There is no Charter right to consultation in the formation and implementation of public policy.  The move shows incredible disrespect for the democratic process.

The two examples are merely formal manifestations of this phenomena as instigated by two highly organized lobby groups. Ironically, individuals and groups advocating for democracy have consistently advocated an approach which is antithetical to democratic practice. Take for example interim Liberal leader Bob Rae, who in November called on the Governor General of Canada to withhold royal assent to the Conservative bill that ultimately killed the Wheat Board. Apparently, in order to strengthen the democratic process and uphold the law, it was necessary to ask an unelected figurehead with no precedent to resort to an act that would have no legitimacy to override the collective will of the Canada in the form of the elected House of Commons and abort a bill desired by an executive with the confidence of the house. Indeed, a Quebec woman became something of a folk hero by writing the Queen to request that she fire her Prime Minister. One wonders what is more troubling: the utter lack of understanding of the functioning of this country's institutions or the widespread support for a course of action so contrary to practice and democratic principles.

At its core democracy is about making decisions. It begins with an electorate choosing those who will govern on their behalf. Choices must also be made in the realm of public policy. By the very nature of this enterprise, no legislative agenda will please everyone. There will be, to put it bluntly, winners and losers. Popularly elected bodies, be it local council or the provincial legislature, have institutional, democratic and moral legitimacy to make decisions. When groups - be it cycling advocates or doctors - find themselves facing the blunt end of policy decisions, the rhetoric shifts from democratic to technocratic. The democratic avenues having been foreclosed, the battle is fought on the value of the policy, whether a policy is 'good' or 'bad'. Cyclists are essentially arguing that the policy is bad policy and should thus be overturned. The OMA is making a similar case, but taking its battle in another direction. Both forget that these are normative decisions.  

There are no neutral statistics, no political facts waiting unblemished to be picked up and converted into 'good' public policy. All require mediation and all are subjected to normative frames of reference. The Left should be particularly careful when advocating for policy on such technocratic grounds given that the Right can and is making the same arguments in Europe. One need look only to Italy - where an installed technocrat is implementing policy on such grounds - to see the danger. At some point groups need to respect the will of elected representatives, and thus the electorate, whether they agree or not. This does not mean ceasing to agitate or rallying civil society. This can be done without negating electoral democracy.

These attempts at a democratic bypass are symptoms of a larger malaise, but they are also product a mistaken conceptualization of what democracy itself means. At the risk of invoking 'the silent majority' - the tired, largely fictitious multitude used, often effectively, by the Right - minorities, albeit vocal ones, must resist the urge to imprint their own views onto the public by using their own enthusiasm and extrapolating from that the larger public sentiment. Moreover, there needs be a balance between two extremes, between those who see the ballot box as the sole measure of democracy and those that see civil society movements (of varying popularity and membership) as the singular expression of democracy. The reality is that both are required for a healthy democracy. One side cannot sustain a democracy by negating one to bolster the other. To borrow a tired analogy, they are two sides of the same coin. Civil society should not be marginalized, yet it has a reciprocal obligation to respect democratic outcomes unless there is a constitutional question at stake. Faith in our institutions - from city councils to provincial legislatures - cannot be restored by undermining their authority or legitimacy in the name of democracy. That way lies ruin. 

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