Dr.Dawg

Unclarity from the author of the Clarity Act

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Former Liberal leader Stéphane Dion wades into the current debate over the Clarity Act and the NDP’s proposed replacement. But he merely adds his reedy voice to the chorus of groupthinkiness from the old wise heads of the Media Party, and assorted self-interested politicians, who have already condemned Tom Mulcair for everything from Constitutional confusion to treason.

The problem is that none of these pundits and political has-beens who are presently defending the Clarity Act seem very interested in clarity. One might be forgiven, in fact, for thinking that they actually prefer the opposite.

Ordinary Canadians might welcome the clarifications that the NDP Bill offers. But the establishment wants to load the dice against any conceivable attempt by Quebec to exercise self-determination. Keeping things murky allows for all sorts of federal-side surprises when push comes to shove. You only got a two-thirds Yes vote? We think you need 75%! What, people voted on the question, “Do you want Quebec to separate from Canada and become a sovereign nation?” We say that’s not nearly clear enough. No negotiations for you!

Of course there’s also the matter of the bias of the single-minded corporate media, determined to pull down the NDP under any pretext whatsoever. They can be counted upon to re-frame any national debate in order to place Tom Mulcair in the worst possible light. Here is a particularly ripe example, from the Harper-endorsing Globe & Mail. Expect lots more of this guff from the Media Party in the months and years to come.

In any case, these are what pose as arguments in Dion’s partisan screed:

The bill provides that the federal government will have to re-evaluate the clarity of the referendum question on secession. The Clarity Act gives this role to the House.

It is more democratic for the latter to make that assessment. Since when has the NDP wanted the government to act without the approval of the House on critical issues?

The notion of the House of Commons soberly assessing the clarity of anything is great LOL-fodder, but seriously, folks, precisely how would this be accomplished? The NDP Bill gives chapter and verse on what a clear question is—something Dion’s Clarity Act signally fails to do—and sets the government of the day on a very narrow course.

Should that government decide that the question is not sufficiently clear, the matter would be referred to the courts. But this, Dion avers (and he’s not alone) is anathema—why, the Supreme Court of Canada once offered an opinion on the subject!

This bill contradicts the opinion of the Supreme Court by giving the Quebec Court of Appeal the role of deciding the clarity of the question. In its opinion on Quebec secession, the Supreme Court assigned the responsibility for assessing clarity to politicians.

This bill also violates the Supreme Court opinion by setting a threshold in advance for evaluating the clear majority. And yet, the court issued the opinion that a clear majority had to be determined “in the circumstances under which a future referendum vote may be taken.”

In case anyone needs reminding, including sitting politicians and those who claim expertise in constitutional matters, Parliament is supreme in Canada. Should it decide that courts rather than politicians should be the final arbiters of the clarity of a question, it may do so constitutionally. The same goes for specifying in legislation what a “clear majority” is, something, once again, that Dion’s Clarity Act doesn’t do. Nothing is “violated” thereby—such language is inflammatory and well wide of the mark. Not one of these commentators has come straight out with the explicit claim that the NDP Bill is unconstitutional. That in itself is telling.

Dion goes on to make a frankly pointless comparison:

The bill sets this threshold at a single vote difference. The NDP, which requires a two-thirds majority to amend its own constitution, is prepared to dismantle Canada on the basis of a recount. If 50 per cent plus one is a clear majority, then what would be an unclear majority?

Let’s unpack this nonsense. Meeting a qualifying requirement to enter negotiations with the federal government—which have no predetermined outcome—is not remotely the same as passing a binding constitutional amendment. This isn’t even apples and oranges, both of which at least are fruit. It’s airplanes and crocodiles.

Then Dion raises the question of participation:

Moreover, contrary to the Clarity Act, this bill does not use the turnout rate as a criterion for evaluating a clear majority.

Turnout in the last referendum was 94%. In a democracy, popular will is normally determined by election or referendum/plebiscite. Only the foolish make claims about the putative views of those who, for whatever reason, have chosen to absent themselves from the democratic process.

Oddly, while the *Clarity Act” is completely unclear on the subject of clarity, Dion demands it when it comes to the federal mandate in negotiations:

Unlike the Clarity Act, the bill says nothing about the principles that should guide the federal government when negotiating on secession - in particular, the protection of minority rights.

This is hardly a serious objection. Everything, including the protection of minority rights, would be on the table, whether explicitly included in legislation or not. One would expect, in fact, that the rights of Quebec anglophones and aboriginal peoples would be ignored at the peril of both parties to any negotiations.

Finally, and mercifully, Dion concludes, with this bit of empty partisan bafflegab:

The NDP’s bill deprives Canadians, and Quebeckers especially, of the guarantees provided by the Clarity Act. It shows the extent to which the NDP is sinking into intellectual confusion by trying to please the “separatists” at the expense of the rights of Quebeckers and of all Canadians.

The NDP is skilfully outflanking the “separatists,” in fact, while injecting needed clarity into a highly hypothetical process. And for that supposed sin against the federalist Holy Ghost, the party stands condemned by the chattering bien-pensants who continue to claim their near-monopoly on the national conversation.

UPDATE: (February 6) Philosopher Charles Taylor weighs in.

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This page contains a single entry by Dr.Dawg published on February 4, 2013 6:48 PM.

The Speech Warriors™ will be all over this one was the previous entry in this blog.

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