Bill C-51 Weakens the Rule of Law

The following remarks were delivered in a panel discussion on Anti-Terror Bill,  C-51, organized by the Institute for the Humanities, Simon Fraser University on 3/24/2015.

Video of the entire event is available here.

Bill C-51 threatens the foundation of our legal system. It weakens the rule of law and the separation of powers which underpins our democracy. It will make our political institutions not only less democratic, and less robust as guarantors of our rights and freedoms, but also weaker—less capable of responding the threats we face and less capable of mobilizing collective action toward desired ends.

Our political system is based on the rule of law. That means nobody is above the law, the actions of all must comply with the law, and no person should be the judge of his or her own cause. Whenever the rules are made, implemented, and enforced by the same person or group of people, we find ourselves in a situation that is the very definition of tyranny.

800 years ago the tyrant King John was forced to sign the Magna Carta, which affirmed “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, expect by the lawful judgment of his equals or by the law of the land.”

Bill C-51 amends the Canadian Security Intelligence Act to allow CSIS to respond to threats to “the security of Canada” by means of measures that contravene rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms. It also allows them to break Canadian law. That is, this is a law that explicitly authorizes law-breaking and violations of the Charter by our intelligence service.

What would the barons at Runnymede have thought of the idea of a judge-issued warrant to “enter any place or open or obtain access to any thing,” “remove or make copies or record any information, record or document,” or “install, maintain or remove any thing”? Such sweeping powers were precisely their target.

Such abrogation of the law or the constitution are to be given a fig leaf of legality, which only makes matters more obnoxious. Law-breaking is to be authorized by a warrant from a judge. Except that a judge may not authorize specific illegal activities that are explicitly exempted: CSIS shall not cause death or bodily harm, obstruct or pervert the course of justice, or “violate the sexual integrity of an individual.” What is wrong with this?

We cannot put a judge in a position of saying “the law says you must do X, but notwithstanding that you have my permission to do Y.” Permission on what basis? When a judge issues a warrant it is to guarantee—that is the origin of the word warrant—guarantee the legality of the actions of the police. It is not to find exceptions. It is not to exercise discretion with respect to what is the law. As Paul Ricoeur puts is: “The most fundamental limitation juridical argumentation meets has to do with the fact that the judge is not a legislator, that he applies the law, that is, that he incorporates into his arguments the law in effect.” It is the job of the judge, strictly, to say what is the law—neither more nor less. The very idea that a judge might counsel an illegal act is inimical to our rule of law tradition. It strikes at the very heart of our system of justice.

These provisions undermine the principle of the hierarchy of laws. This principle requires that when a higher law conflicts with a lower law, the higher law shall prevail. Constitutional guarantees cannot be trumped by statutory law; statutory laws cannot be abrogated by municipal ordinances; municipal ordinances cannot be negated by contracts between individuals.

Bill C-51 uses statutory law to interpret which guarantees contained in the Charter of Rights and Freedoms can or cannot be abrogated by a judge. It essentially creates two classes of constitutional guarantees—those which can be abrogated by a judge and those which cannot, and it does so in legislation that ranks below the constitution. Who gave the parliament of Canada the right to reinterpret our constitution and to decide that there are two tiers of guarantees?

To reinterpret the Charter through ordinary legislation makes nonsense of our entire legal system and our constitution. It makes nonsense of the separation of powers.

As Roach & Forcese have said: “For the first time, judges are being asked to bless in advance a violation of our Charter rights, in a secret hearing, not subject to appeal, and with only the government side represented.” The Canadian Bar Association says C-51 “brings the entire Charter into risk, and is unprecedented.” The BC Civil Liberties Association claims: “The role of the court in our constitutional system is to ensure that both the executive and the legislature act in accordance with the law. To ask the court to authorize constitutional violations is simply offensive to the rule of law…”

The separation of powers requires that legislatures legislate, judges judge, and executives execute policy. There is a purpose to organizing the powers of the state in this manner. It is because no law, no matter how carefully written, is unambiguous or free from multiple interpretations.

Take a term like “terrorism.” What does it mean? We could argue all night about the intrinsic meaning of the word, but the reality is that law demands that we take general rules and apply them to particular cases.

To get the best results, you don’t write sweeping legislation and then leave it up to administrative agencies to decide how to best implement the law. You need to build in checks and balances, not to hinder the functioning of government as a whole, but to guarantee its consistency by ensuring that actions by government officials are deliberate, implemented effectively, and enforced impartially.

And the best way to accomplish this is by creating branches of government that are specialized in distinctive activities and that work together to generate authoritative interpretations that guide collective action in accordance with the public interest.

The sad truth is that our parliament has been emasculated to such a degree that it is no longer a meaningful deliberative body. We have omnibus bills that are so complex and comprehensive that their effects can hardly be understood by the MPs who pass them. These bills are rushed through committees that no longer do meaningful work, passed without amendments, following closure to cut off debate.

Among the weaknesses of our parliamentary system is the lack of parliamentary oversight of the intelligence service. Such oversight is absolutely necessary to ensure that the implementation and enforcement of the law is compatible with the rule of law and the public interest.

Many people will object to Bill C-51 because they fear it will excessively enhance state power at the expense of the citizen. That is a real danger. My objection, however, is to the way that this Bill weakens our political institutions.

It will do this not only by making them vulnerable to the abuse of power and to the loss of legitimacy that this will entail.

It will also do so by making it harder to mobilize the resources in our society that enable effective collective action in response to threats. It will create confusion over what intelligence agencies can and cannot do, what constitutes legitimate dissent, the role of the courts, and deliberative quality of our legislative institutions.

Elements of Bill C-51, if passed, must be disobeyed. By whom? By our courts. I expect that this legislation will set up a major conflict between the executive and judicial branches of government. The courts must strike down this legislation as inimical to the Charter.

Canada cannot and should not mark the 800th anniversary of the Magna Carta by tossing key principles from it in the dust bin.

Should Elections BC give parties data on voter turnout?

I spoke today on BC Almanac about an interesting story reported by the CBC. You can hear the podcast here.

The BC Privacy Commissioner Elizabeth Denham objects to a proposed change to the BC Election Act that would provide political parties information about whether people have voted. Her concern is that this information would allow parties to target voters for fundraising and profiling. In political campaigns this is called “micro-targeting.”

In a world of big data, political parties can combine demographic and consumer information with their own internal databases on voters to make powerful inferences about who is likely to vote for their candidates. With this new information they will have an additional tool that will help them to understand turnout among supporters and opponents.

According to BC’s Chief Electoral Officer, political parties want this information: “When consulted on
 this issue, all political
 party representatives
 on the Election Advisory Committee requested that the Election Act also be amended to require the Chief Electoral Officer to provide individual voter participation information 
to political parties after
 an election.” Elections BC does not take a position on the issue, but obviously the government favours it.

Denham does not disagree with sharing information on voters that would help parties to get out the vote. Right now, campaigners are given bingo cards that allow them to track who has voted and who has not, both during advance polling and on election day. Her fear is that the release of individual-level information on turnout after the election could be used “for creating voter profiles, targeting voters, fundraising, sharing data across systems for secondary purposes, collecting non-consensual information, inappropriate communication from parties, and other intrusive uses.”

I was asked to speak to the issue of voter turnout. I think a number of issues need to be disentangled.

First, there is evidence that campaigning does increase turnout. A huge part of election campaigning in Canada is identification of voters and getting out the vote on election day. The more information parties have, the easier it is for them to target their efforts where it will be most effective.

Second, the availability of advanced analytics enables campaigners to be extremely focused in their messages. They can concentrate not just on key ridings but on key demographic groups and even individuals. Whereas in the past we spoke of swing ridings and swing voters in the plural, now the focus is on the swing voter as an individual.

Third, the growing importance of social media means that messages can be targeted at specific individuals or groups, by-passing the filter of the mass media. This raises troubling issues about fact-checking and the use of deceptive communications that fly below the radar.

It is not hard to see how they trends can also have a dark side. If campaigns can increase turnout, they can also be used to suppress turnout. A good example of that is the targeting of Jewish Liberal voters in the last election by vexatious phone calls late on Saturday nights intended to anger them against the Liberal Party. The callers claimed to be from the Liberal Party. Such calls required access to a database that could target the right individuals.

Similarly, the use of deceptive robocalls was a wake-up call to Canadians about the need for more vigorous monitoring and oversight of the behavior of candidates during elections.

By their own admission, parties are having a hard time recruiting the volunteers necessary to keep track of who has voted. This speaks to the way in which parties have become PR machines for candidates, rather than organizations with deep roots in civil society. The discussion of the use of data should be place in this larger context. Increasingly, voters do not trust politicians and parties .

I defer to the Privacy Commissioner on the best way to regulate the use of information in election campaigns. It seems inevitable that our politics is going to be transformed by the mining of data. Perhaps what we need is some sort of enforceable commitment on the part of the parties to uphold standards of good conduct during elections. If they are to be given access to this sort of information, a commitment to honesty and fair play seems like a reasonable quid pro quo.

No single Americas project exists

The following commentary was written in response to a request from the Canadian International Council to discuss to an article by Jean Daudelin on the Summit of the Americas in Panama. See the debate here.

The nations of Latin America are bound together by histories of colonialism and the struggle for independence; consolidation of oligarchies after a period of anarchy in the 19th century; populist mobilizations for political change in the early 20th century; a wave of revolutionary struggles and intense repression following the Cuban revolution in 1959; simultaneous transitions to democracy and market-led development in the 1980s, and, most recently, shifts to the left in some countries and more tepid reforms in others.

“Left turns” reflect disappointment with the record of market reforms, as well as the inability of liberal, representative democracy to promote inclusion and participation in the context of weak public institutions and uneven citizenship. Foreign intervention —protectorates, invasions, or foreign-backed coups — has been another constant in the region’s history.

Today, however, the region enjoys unprecedented independence from the influence of external forces — it is neither in debt to foreign creditors, nor a battleground for superpowers. It is free to pursue experimentation with both political institutions and models of development.  Rather than a single project, we are witnessing a proliferation of diverse patterns of innovation and change.  Among the most interesting models are Brazil and Bolivia, which have broken new ground in developing participatory budgeting, policy conferences, indigenous autonomies, and other new institutions of direct, participatory democracy. They are also pursuing pragmatic developmental and social policies aimed at overcoming legacies of exclusion, poverty, and inequality. While the rest of the world is becoming more unequal, Latin America is becoming more egalitarian.

The biggest challenge the region faces lies in the weakness and politicization of state institutions, which prevents legal institutions from guaranteeing and enforcing fundamental rights and freedoms. The horrific violations of human rights in Central America and Mexico are occurring under electoral democracies of extremely poor quality. The poorest quality of democracy can be found precisely in the countries where colonial legacies are greatest, where large indigenous communities have been excluded from citizenship rights, where extractive industries are most critical to economic development, and where the pattern of political change has emphasized repressive oligarchies, radical populism, and repressive authoritarian regimes. The highest quality of democracy is found in Costa Rica and Uruguay — countries that were marginal to the colonial enterprise, where labour-repressive plantations and mining enclaves were less important, and where the pattern of political development involved the early development of constitutionalism, milder versions of populism, and less repression.

There are emerging projects in Latin America, but we North Americans typically fail to see them because of the ideological blinkers we wear, which cause us to focus narrowly on the protection of liberal democratic regimes and the rights of property and free enterprise rather than to focus on the deeper problems of poverty, inequality, exclusion, and repression that have led to patterns of development in which state capacity to respond to collective needs is diminished.  We persist in thinking that the solution is markets, liberal democracy, and cooperation in such absurdities as the “war on drugs” or the “national security threat” from Venezuela.

Too bad for us. It means we are excluding ourselves from the emerging projects of the Americas.

Does the Duffy Scandal Expose the Need for More Rules?

Much of the reporting on the Mike Duffy trial has emphasized the laxness of the rules of Senate with regard to what counts as residency or what expenses can be claimed. For example, Christy Blatchford writes: “When the man with no shame met the place with no rules, so perfect was the marriage, so instant the attraction, the fireworks must have been spectacular.” She goes on to describe a letter to Duffy from Christopher McCreery, policy advisor to Senator Marjory LeBreton, which indicated that the Senate is an “honourable” chamber in which nobody would question the word of a senator who says he or she can represent a Province where they own property, even if they live in Ottawa 99 percent of the time; nor would anyone question whether expense claims are valid if a senator claims Ottawa as a secondary residence even if he or she lived there for decades, as was the case with Duffy.

What kind of rules was Duffy breaking? You could argue that there were no rules, and therefore he was breaking none. This appears to be Duffy’s defense. Curiously, commentators may accept this defense, arguing for the need for tighter rules. But this lets Duffy off the hook — as well as the guy who appointed him.  Yet another interpretation is possible. We can start by making a distinction between regulatory rules and constitutive rules. Regulatory rules, like most laws, enjoin or prohibit actions on penalty of sanctions; they govern an activity or practice. Constitutive rules create a practice: they are the rules of the game that give an institution its identity and determine its function. What counts as representing a Province is a constitutive rule. What expenses can be claimed once it is determined where a senator lives is a regulatory rule.

The problem exposed by the Duffy scandal is less a problem of regulatory rules: Duffy was not appointed to represent the interests of PEI, he was appointed to be a partisan fundraiser and campaigner. That his appointment bent the rules of residency and that he claimed expenses that were fraudulent is a symptom of a deeper problem—namely, that his appointment was made in the interest of partisan machinations, not in order to enhance the representation of a Province in the legislative process. In a way, it was an arrogation of power by Ottawa, at the expense of PEI, and at the expense of the proper functioning of the political system.

Why I’m happy to vote Yes on the Transit Referendum

Last year I spent seven months in a major city in Latin America. The congestion, pollution and crime are so bad that it makes moving around the city a nightmare. A trip that should take 15 minutes can take 45 minutes to an hour. 45 minutes breathing noxious gases, in aggressive traffic, is enough to make anyone prefer to stay home and read a book rather than go to the theatre, a good restaurant, or meet up with friends.

The experience impressed on me the value of public transit. When I think of public transit I don’t just think about buses, trains, roads and bridges. I think of the freedom to move around town tolerably efficiently, safely, cheaply and sustainably. This is just one of the goods we get in return for the taxes we pay.

Our well-being is closely tied to the quality of these kinds of goods. Others such goods include great public schools, and a public health care system that does not ask for a credit card before asking what ails us, safe streets. Governments alone can provide these goods, and they benefit us all. Many Canadians take them for granted. I don’t. That is why I support the transit referendum.

I will vote Yes because I want to continue to live in a vibrant, livable, safe, clean, sustainable, healthy, and naturally beautiful city. The small tax increase we pay now is an investment in the future. It is a bit of insurance against Vancouver becoming a congested, segregated, unsafe and smoggy city.

I admit there are things about the referendum that I don’t like. I don’t see the necessity of asking voters every time we need to raise taxes to make public investments. This sets a bad precedent and could put us on the same path that has been so disastrous for California where governments have been hamstrung by naysaying voters.

I also don’t like the fact that the revenue for transit will come from a regressive consumption tax. People with high incomes don’t need public goods as much as the public at large, but they should still pay their fair share—maybe more. They can drive luxury cars rather than use the bus or train, pay for private rather than public schools and clinics, and wall themselves off from social problems like homelessness and addiction.

But just because high income earners can find private substitutes for public goods does not mean they should be free riders. The more the affluent fail to contribute to public goods, the more we are like to become like Third World cities with their glaring disparities of income and underfunded public goods.

For all the problems with this referendum, voting “No” is short-sighted and counter-productive. The website of the “No” campaign invites voters to forgo the tax and spend their money on private consumption—a dinner out, a hockey game, or swimming lessons.

I’ll happily pay a modest increase in taxes for public transportation because enjoying the goods comparable cash can buy turns out to be a lot less rewarding when the child you’re taking to swimming lessons has asthma from air pollution, or you’re too tired from spending miserable and unproductive hours in congested streets breathing polluted air on your lengthy commute home, to bother dinning out or going to the hockey game with friends.

Vancouver Votes for the Status Quo

The November 15, 2014, elections in the Lower Mainland provided more evidence of the high rate of incumbency in BC municipal politics: all the largest population centres voted for the status quo. Incumbents were re-elected in Vancouver (Gregor Robertson), Burnaby (Derek Corrigan), Richmond (Malcolm Brodie), North Van (Darrell Mussatto) and the Tri-Cities (Greg Moore, Mike Clay, Richard Stewart). In Surrey, Dianne Watts’ anointed successor Linda Hepner won by a surprising margin. In Langley Township, incumbent Jack Froese warded off a challenge from former mayor Rick Green. There were upset victories in more troubled municipalities: Jonathan Cote’s victory over longstanding mayor Wayne Wright in New Westminster, or the election of Randy Hawes in Mission. In both cases there were conflicts between mayors and their councils. In Abbotsford, Henry Braun ousted Bruce Banman; and in Maple Ridge Ernie Daykin lost to Nicole Read. Perhaps most surprisingly, the election of Lisa Helps—by the narrowest margin—in Victoria is a real surprise. But the main overall takeaway is that voters are happy with the status quo.

In the waning days of the campaign it looked like the Vision government might go down to defeat in Vancouver. After his political “near-death experience,” we may see a chastened Mayor Robertson attempt to be a better listener. He did promise to welcome more voices in his acceptance speech, but he also won a mandate to continue his policies: seeking to be the “greenest city,” prioritizing climate change, affordability, and homelessness. The NPA approach focused on growth, economic development, investment, transparency and accountability. It would have aligned Vancouver more closely with the ideological bent in Victoria and Ottawa. That this did not happen is a reminder that Vancouver is different, especially on the environment—something the federal parties will have to think about in 2015. The results were not what the oil and gas industry hoped for. The cities of Vancouver and Burnaby have both expressed opposition to the Kinder Morgan pipeline expansion, and Patricia Heintzman, the new mayor of Squamish, is opposed to the construction of an LNG plant in that municipality.

The NPA campaign was polarizing and negative. Kirk LaPointe could have run as someone who would not radically depart from the Vision agenda, but would offer more consultation and transparency, but then it would have been hard for him to differentiate himself from Gregor Robertson who already enjoyed greater name recognition and standing in the community. Instead, he ran a more polarizing campaign that highlighted differences between the candidates. Vision seemed surprised by such a strong challenge. Rather than using the negative ads to take the high road, Vision took NPA and LaPointe to court, which seemed petulant rather than politically astute. The Seinfeld-esque apology (an apology about nothing) looked insecure and…well, apologetic.  At one point, in the same debate in which the apology was offered, the mayor was put on the defensive about being a bike rider. He did not strike back over the attack ads, and did not aggressively defend his record. In the end, however, both the strength of the NPA campaign and the weakness of the mayor’s performance was not enough to convince voters to abandon the status quo. I tend not to like negative campaigns because they turnoff voters, suppress turnout, and encourage people to dislike politics and politicians. In this case, however, the NPA campaign led to a tighter-than-expected race, and this probably increased turnout. I think the high turnout may have favoured Vision, which had the better-oiled machine to pull the vote. Ironically, much of Vision’s support may have been a vote against the NPA as much as a vote of confidence in Vision.  

Venezuela: The Failure of the Fifth Republic

Published in LSE IDEAS.

The turmoil that has rocked Venezuela since early February has resulted in almost 30 deaths, hundreds of injuries, and 1,500 detentions (see timeline here). Although such protests were never likely to threaten the survival of the regime, their intensity, breadth, and duration have exposed the deep cleavages and polarization in Venezuelan society. The intent of many of the protesters is clear: to bring down a government elected less than a year ago.

After 15 years in power, why is the Venezuelan political regime still vulnerable to anti-system opposition? One might ask, to steal a line from Mario Vargas Llosa, ‘en que momento se jodió?’ most from the beginning, I would say. What we are witnessing in Venezuela today is a crisis brought about by the failure of chavismo to adhere to principles of its own ‘Bolivarian’ constitution—indeed, principles inherent in any constitution.

Neither ex-President Hugo Chávez (1998-2013), nor incumbent President Nicolás Maduro, ever fully appreciated the critical role of opposition in constitutional and democratic regimes: to offer a viable electoral alternative to the existing government and to question the actions of government officials, criticise them when appropriate, and thereby ensure that those in power are accountable between elections. The opposition has never truly united around a consensus on whether to play by the constitutional rules of the game. Neither side recognises the legitimacy of the other.

For over a decade, there has been a negative dialectic between the government and the opposition: Chávez minimised the role of the opposition in the constituent assembly that wrote the 1999 Constitution (surely a mistake); the opposition tried to topple Chávez in a botched coup attempt (huge mistake); Chávez hardened his regime, cracking down on critical media and reinforcing popular organisations; a chastened opposition organised a petition to recall Chávez by referendum (a good move, albeit unsuccessful); Chávez fought and prevailed using every trick in the book; a demoralised oppositionboycotted the 2005 legislative election and then was trounced in presidential elections the next year (score two for Chávez); Chávez radicalised his revolution; the opposition unified and organised its best effort to challenge Chávez at the polls in 2012, followed by an even stronger result against Maduro in 2013.

This brings us to the present, where the dismal pattern has continued: Maduro should have read hisnarrow victory as a sign that he needs to reach out to the opposition, but (perhaps more worried about sustaining the internal cohesion of his coalition) he instead confronted and attacked the opposition (mistake); a fraction of the latter threw its support behind student protests of February 2014, using#LaSalida to give them a stronger anti-regime flavour (mistake). The protests have not spread much beyond Venezuela’s middle and upper middle-classes, but they have spread across the country and have lasted for over a month.

All this illustrates that the Bolivarian constitution, although not merely printed matter, has not been fully institutionalised. The government and opposition in Venezuela cannot rise above their differences and recognise each other as citizens. Maduro calls his opponents ‘fascists’; the opposition calls the government a ‘dictatorship’. This can be fatal for democracy. As Guillermo O’Donnell put it, democracy depends on an ‘institutionalised wager’: I may believe you are wrong, but I must respect your right to vote and be elected (2010: 26). We have the same rights of citizenship. These rights are not negotiable. They are inalienable and imprescriptible, and they are backed up by an organisational guarantee: the rule of law under the separation of powers. This is why constitutions matter. They are the constitutive rules of democratic politics and provide the generative grammar that enables democracy to flourish (Cameron 2013).

How should we characterise the Venezuelan political system? Specifically, is Venezuela democratic or authoritarian? The answer is that it is both; it is a hybrid regime. There non-fraudulent elections; but elections are a means to a set of ends or ‘goods’—and they alone do not make a regime democratic. The ends (or ‘goods’) are: (1) the possibility of alternation in power; and (2) the guarantee that a government will govern democratically and that the opposition will accept the results, because it has a legitimate voice and stake in the system. Elections must be free and fair to ensure that they produce these democratic goods, which means that further conditions must be present: access to alternative sources of information, the right to assembly, association and protections for fundamental rights and freedoms. The Venezuelan government has grossly violated these conditions.

Venezuela’s democracy is thus defective; it is plebiscitary and delegative. But is it authoritarian? Classifying a regime as authoritarian requires more than highlighting defects in its democratic features—it requires evidence of authoritarianism. The idea of competitive authoritarianism, although useful, needs further specification to avoid creating confusion over where to draw the line between democracy and authoritarian rule.

The voluminous literature on authoritarian rule reveals a common thread. In authoritarian regimes, a coalition of non-elected officials rules by coercion. Such governments cannot be removed by means of elections. They may be military and/or civilian; they may have technocratic and corporativist elements. Before labelling Venezuela as authoritarian, we would need to see such a coalition come into sharper relief. Perhaps it is there in waiting. We see armed colectivos, the regime’s Rottweilers; we see a politicised military throughout the bureaucracy; we see a Boli-bourgeoisie that does not want to lose its privileges. Could these elements come together to prevent alternation in power? Possibly, but it has not to date. What is clear is that these groups are not interested in allowing the opposition to play its critical role.

In short, the Venezuelan political system today has both democratic and authoritarian features that are at odds with each other. This should guide our thinking about how to avoid deepening the conflict. Venezuela urgently needs dialogue between the government and the opposition. We know from the transitology literature that hard-liners in the regime and radicals in the opposition often reinforce each other, and that successful transitions involve coalitions between soft-liners and moderates (Przeworski 1992). Building such a coalition demands great leadership skills on both sides—but it is possible. It is the challenge faced by current generation of leaders in Venezuela, and the international community can help.

The situation in Venezuela calls for the flexible and proactive diplomacy. In the absence of effective action by the OAS, the Union of South American Nations (UNASUR) has offered to convene a much needed dialogue. To be meaningful, any dialogue will have to include human rights, freedom of the press, rights of the opposition, restoration of the constitutional separation of powers, citizen security and the rule of law. As Jennifer McCoy notes, it will have to create space for moderates, build confidence, and restore communication between government and opposition.

The lesson this crisis offers the rest of the world is the importance of opposition in a democracy: ‘In democracies the opposition is an organ of popular sovereignty just as vital as the government. To suppress the opposition is to suppress the sovereignty of the people’ (Guglielmo Ferrero cited in Sartori 1987: 32).



Cameron, Maxwell A. 2013. Strong Constitutions: Social-Cognitive Origins of the Separation of Powers. New York: Oxford University Press.

O’Donnell, Guillermo. 2010. Democracy, Agency, and the State: Theory with Comparative Intent. New York: Oxford University Press.

Przeworski, Adam. 1992. “The Games of Transition.” In Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective, Ed. Scott Mainwaring, et al. Notre Dame, Indiana: Notre Dame University Press, pp. 105-152.

Sartori, Giovanni. 1987. The Theory of Democracy Revisited: Part I. Clatham: Clatham House Publishers.

Drone Warfare and the Constitution

From the Fletcher Forum.

Thirteen-year-old Zubair Rehman recently told members of Congress how his grandmother, Mamana Bibi, was “exploded to pieces” by a U.S. drone attack while picking okra for a family meal. A similarly tragic drone strike in Yemen last month killed a wedding party of fifteen. The Obama administration should take three measures to safeguard against such atrocities in the future. First, encourage Congress to develop guidelines for the use of drones. Second, create a drone court to authorize strikes and provide remedy for victims. And third, curtail Central Intelligence Agency involvement in drone warfare.

Are such measures really necessary? Advocates for the use of drones point out that they have effectively neutralized terror networks and leaders, such as Pakistan Taliban chief Hakimullah Mehsud. Mehsud was reportedly the mastermind of an attack on a CIA post in Afghanistan that killed several Americas (an event dramatized in Zero Dark Thirty).

But what about targets that fall into the ethical gray zone between killing Mamana Bibi and Mehsud? How do we decide who is a civilian and who is a “militant”? By what criteria are people designated legitimate targets? When is it legal to kill combatants outside active hostilities? How can we know when a killing is justifiable on grounds of self-defense, and when it is punitive?

To answer to these questions, we must recall why constitutional democracies distribute authority and responsibility among the branches of government. If the rule of law is to mean anything, it cannot be up to the president and those under his authority alone to decide who shall live or die. If the executive can enact laws and execute them, standing in arbitrary judgment over citizens, there can be no security of life and liberty.

This is how James Madison and the Founders of the United States Constitution understood the separation of powers. Madison also understood that the normal functioning of deliberative institutions would be impossible in times of war. That is why he said, as Obama noted in his May 23 speech at the National Defense University, “No nation could preserve its freedom in the midst of continual warfare.”

This was not the view of Bush-era officials who argued that permanent war should give the president exceptional powers, permanently. Obama can still distinguish his policies from those of the Bush administration by strengthening the separation of powers as part of the effort to phase out the “war on terror.” This would accomplish more than presidential guidelines that can be thrown away by the next incumbent.

First and foremost, the legislature, not the executive, should write the rules governing the legal use of force. The executive needs a new Authorization to Use Military Force (AUMF), one that clarifies the proper scope of presidential war-making powers in the specific context of drone warfare. It is not enough to apprise select congressional committees of executive decisions involving lethal force; legislators should spell out, after a public debate, rules governing the use of drones outside the battlefield wherever targets are not directly engaged in acts of terrorism.

The second step would be for Congress to authorize the creation of a drone court, as many legal experts have suggested. Such a court would oversee compliance with rules established by congress. Just as a judge can authorize an arrest or search warrant, drone courts could authorize the use of force in situations where there is ambiguity over the legality of a targeting decision. A court would also provide remedy for victims of unlawful uses of force.

The final step would be to halt drone campaigns by the CIA and place drones exclusively under control of the Armed Forces. Obama has been excessively deferential to the CIA. This is unfortunate, because the CIA does not act in the public domain. The CIA should be limited to providing intelligence—not fighting covert wars—because it is a creature of the executive, over which the deliberative branches of government have little control.

These three steps would compel the branches of government to work together in the fight against terrorism. The role of the courts and congress would expand as the level of threat diminished and the use of military force shifted from self-defense against imminent attacks to the disruption of potentially threatening networks. This will not debilitate the presidency, nor undermine U.S. security. On the contrary, it will strengthen the rule of law and prevent the further corrosion of the Constitution.

The separation of powers enables the United States to act deliberately, efficaciously, and lawfully in making decisions about morally significant actions involving life and death. It is at the heart of what gives the United States a strong constitution; vigilance in holding the government accountable is the price of these democratic values.

Fiddling While Rome Burns? Not so fast Mr. Martin

Lawrence Martin complains that Canadian political scientists are not speaking out on the malaise that affects our democracy (“Canadian Political Scholars Fiddle While Rome Burns”, Globe and Mail, June 4, 2013).  He quotes political scientists who share his lament for our profession.  It is true that as political science becomes more narrow, technical, and abstract it loses relevance to the practice of democratic politics.  But there are also powerful forces that push us in the direction of public engagement.

Like many political scientists, I am not happy with the state of parliamentary democracy in Canada today.  We all lament the excesses of party discipline, the toxic levels of partisanship, the media focus on negative attacks, and the failure of many parliamentarians to live up to the ideals of the institution they serve. But laments are not enough.

That is why UBC brought political scientists and practitioners together to create a Summer Institute for Future Legislators (watch a superb W5 documentary on our boot camp here).  We are actually training aspiring politicians in the art and craft of parliamentary practices. In developing this program we take inspiration from a series of books published by UBC press from the Canadian Democratic Audit (which Mr. Martin does not mention).  Indeed, we assign David Docherty’s book from that series, Legislatures.  We also draw on the work of Samara on the role of parliament, a project that mobilized the knowledge of many political scientists.

We agree with Samara’s main finding: we need to empower ordinary MPs.  For a constitution to work well, MPs must find their voice and reassert their authority – over the bureaucracy, over parties, and even, from time to time, over the Prime Minister’s office.  Brett Rathgeber is no maverick.  He is doing what MPs were elected to do.

Of course, as a political scientist I am under no illusions that my discipline can produce better legislators.  Aristotle famously said that politics is a practice, and practice demands experience.  Few political scientists have real world experience in politics.  No amount of peer reviewed research can replace the knowledge, experience, and judgment of an able practitioner.  That is why our summer institute seeks to bridge academic reflection and practical experience.  Preston Manning, Mike Harcourt, Anne McLellan and many others have volunteered their time to help us create a new generation of democratic leaders.

It is true that this takes the university into uncharted territory, and not all political scientists have an appetite for that challenge.  Some will continue to focus all their efforts on abstract research while leaving to others the task of translating their knowledge into practice.  But to suggest that we’re all fiddling while Rome burns is to miss at least part of the action.

Canadian democracy is not exactly in crisis, but our political institutions do need to be revitalized

From Chief Electoral Officer Marc Mayrand’s Canada’s Democracy Week Blog.

Canadian democracy is not exactly in crisis, but our political institutions do need to be revitalized. Many people – particularly youth – no longer see politics as the critical arena for making change. Few of my students want to run for office, though many are public-spirited. They’d rather start a fair trade café, use social media to advance awareness of homelessness and environmental issues, or fundraise for research on cancer or MS. They have civic virtue, but politics is not their vocation.

Many good people are deterred from political participation by the disrepute into which politics has fallen. Scandals over expenses, toxic levels of partisanship, and the media emphasis on political theatrics over the prosaic grind of legislation give politicians a bad rap. Canadians reject the culture of entitlement, Question Period antics, bullying and infighting. That is why UBC’s Centre for the Study of Democratic Institutions created the first-ever Summer Institute for Future Legislators.

We began with the premise that universities can and should prepare people for public life. Not academic preparation but training and mentoring by practitioners who could help impart the skills and know-how to be effective as legislators. The Summer Institute was cross-partisan – we included practitioners and participants from all parties. The only requirement was an aspiration to participate in politics. We recruited over 50 men and women of all ages and backgrounds – from business, the media, students, First Nations, lawyers, civil servants – and put them through a kind of boot camp: four Saturday workshops followed by a model parliament in the Legislature in Victoria. Others participated for free online.

The boot camp not only inspired greater interest in politics as a career, it provided an exemplar of what democratic life could be. Rather than replicate parliamentary business as usual, our political wannabes raised the bar. They came away with a deeper appreciation of the demands of political life, yet were not deterred; it actually made them feel more confident that they knew what they were getting into. We saw how quickly group-think kicks in, as participants began to operate as teams, but also how effectively they were able to monitor and overcome the tendency to bully, grandstand or exclude. As a result, mock legislation was passed by broad majorities following impressive deliberations. A sense of accomplishment was palpable as we ended the sitting.

By preparing people for public life we can encourage more good people to enter politics, channel the civic virtue of some of our best citizens, and demonstrate that politics can be done differently. That is just one way to reconnect citizens with democracy.

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