Conceptions of "Public Order"
On April 25, 2022, the Government of Canada established the Public Order Emergency Commission with a mandate to inquire into the circumstances that led to the declaration of emergency that was in place from February 14-23, 2022, and the measures taken for dealing with the emergency. Justice Paul Rouleau was appointed Commissioner.
On February 17, 2023, Justice Rouleau released the Report of the Public Inquiry into the 2022 Public Order Emergency. Following the tabling of the report in Parliament, Justice Rouleau stated, "After careful reflection, I have concluded that the very high threshold required for the invocation of the Act was met. When the decision was made to invoke the Act on February 14, 2022, Cabinet had reasonable grounds to believe that there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures."
Justice Rouleau made an argument to justify the use of the Act despite the fact that the rationale provided by Prime Minister Justin Trudeau and Deputy Prime Minister Chrystia Freeland did not concur. There was no united view in cabinet about what constitutes an emergency as defined in the Emergencies Act, or whether an emergency as defined in the Emergencies Act existed and the threshold required for the invocation of the Act had been met. The rationale was so suspect that even as the Emergencies Act was being invoked, the possibility of its being open to challenge was noted.
Consider this statement by Justin Trudeau at the Inquiry when he was called to explain why he concluded there was a threat to Canada that could not be dealt with through any existing legislation. "What if someone had gotten hurt? What if a police officer had been put in the hospital? What if, when I had an opportunity to do something, I had waited," he what iffed. A "what if" argument is a speculative fallacy, also known as a "what if" fallacy, a counterfactual fallacy. It offers a poorly supported claim about what might have happened in the past or future, if (the hypothetical part) circumstances or conditions were different. It is speculation at best, not founded on evidence, and is unfalsifiable, hence not only a speculative fallacy but a very pathetic way for a Prime Minister of a country to explain why the Emergencies Act was invoked. He was perhaps following in the footsteps of former U.S. President Bush and those since, who invoked the "what if" argument for the U.S. war of terrorism against the peoples: what if another 9/11 is planned, what if terrorists are using mosques, what if we release those in Guantánamo, even though they were not charged or tried, and they commit terrorism again, etc. It is a means to both spread fear and doubt, while diverting opposition to the crimes being committed.
It is also the case that Justin Trudeau, ever drunk with his own image of himself, completely misses the theory behind the argument of "checks and balances" put forward by his father Pierre Trudeau when he invoked the War Measures Act in 1970. The concept puts forward that checks on rights are necessary, to be "balanced" against "national security" interests. It is used to justify sacrificing rights as necessary for the security of the rulers. In this case, ensuring the needs and demands of the U.S. war machine and its supply chain, directly raised by U.S. officials. It is meant to counter the stand of the peoples that security lies in our fight for rights.
For his part, when speaking of the tensions between order and freedom, Rouleau presented the outlook which underpins the juridical outlook on which what are called Canada's democratic institutions are based. He does not take into account the current practice of how laws are passed to remove limitations on ministerial prerogative powers, also called police powers, powers provided by the royal prerogative which is constitutionally protected. Ministers are using their arbitrary powers in every field of life to impose edicts, regulations, arrangements and criminalize those who do not abide by them. This is destroying the fabric of civil society which is based on public opinion because the prior ways of arriving at decisions and setting the direction of society no longer involve the public at all. Decision-making has been privatized.
The liberal democratic institutions which were brought to Canada from England in the 19th century are now obsolete because the nation-building project introduced by the ruling class at that time based on the utilitarian conception of the greatest good for the greatest number no longer exists. The material conditions for it have been superceded by neo-liberalism which brings together conditions which are very different. These conditions have rendered practices based on the conception of what was known as "good government" obsolete. That conception was adopted in the mid-19th century along with its corollaries "peace" and "order."
"Peace" referred to the practice of using colonial armies and secret police services to brutally put down anti-colonial rebellions. "Order" referred to the penal system, laws and institutions, including the creation of jails and courts, to mete out punishment to those who violated anti-worker, anti-people laws or who were destitute, not educated or deranged through no fault of their own. "Good government" referred to the creation of public opinion in the form of a media which informed the polity about the unfolding events and decisions being taken in the parliaments and legislatures, what was behind them and their ramifications and where everyone stood on the matters at hand. The public system of education provided everyone with the same general knowledge which in turn imbued the polity with standards and measures on the basis of which judgements could be made. Political parties were expanded into establishing primary organizations in constituencies of approximately equal size in terms of population and their accompanying electoral system whose aim was to form party government said to be representative.
This, in very brief, was the system called peace, order and good government. It was a democratic system based on serving the bourgeois class in power and, through elections, keeping the working class out of power by getting electors to cast a vote for someone else to represent them and that person must swear allegiance to the monarch of the day. This system provided the polity with cohesion and coherence and individuals and collectives could orient themselves within it.
This order for governing no longer exists. Neither the legislatures, the education system, the media nor political parties are informed by this conception of peace, order and good government but ruling elites, including governments, the cartel parties and the courts, maintain the pretence and give justifications for their self-serving actions and decisions in the name of these defunct precepts -- these general rules intended to regulate behaviour and thought.
Today what are called political parties no longer have members, all of the members of society are left to fend for themselves as a result of privatization and the destruction of public services, and public opinion has been destroyed by the narrow private interests which have usurped the decision-making power. These supranational private interests provide self-serving definitions of national interest and security according to the whim of what makes them superprofits at any time, along with the supranational political police forces and their local spokespersons in the service of economic and military blocs such as the international banking system under U.S. control and NATO and NORAD also under U.S. control.
Nonetheless, Justice Rouleau in his finding that the invocation of the Emergencies Act in 2022 was proper said:
"Tensions between order and freedom sit at the heart of our system of governance." "The machinery of order -- such as procedures, laws, police and courts -- create the conditions for the protection of freedom and the mediation of conflicting freedoms. While order constrains freedom -- laws, for example, limit the range of permissible actions, without order's constraints, freedom cannot exist."
Rouleau uses the word "order" in its juridical meaning, such as the one proffered by the Oxford Languages Dictionary which says: "1. the arrangement or disposition of people or things in relation to each other according to a particular sequence, pattern, or method. 2. a state in which everything is in its correct or appropriate place 3. a state in which the laws and rules regulating the public behavior of members of a community are observed and authority is obeyed." Taking up the third definition, Rouleau presents the argument as though defence of the rule of law is at issue. This makes the grounds cited for its suspension very significant and rightly so, but it diverts attention from the fact that the invocation of the prerogative police powers puts everything that was done subsequently outside the rule of law once all limitations are removed. Where is the accountability when the advice proffered is to change the law?
This is what has become commonplace today in all fields, whether economic, environmental, labour, heritage, education, health care, Indigenous affairs and everything else. Nonetheless, this practice is now soliciting a backlash over the invocation of emergencies legislation and proposed laws which involve judging people on the basis of definitions of the political police for terrorism, national security, hate and so on. This is what is taking place very rapidly today with the proposals for new laws to enforce these arbitrary definitions.
The conceptions of both "order" and "rights" are presented as abstractions. What is not said is that the conception of "order" on which Canada's liberal democratic institutions are based no longer serves to keep a lid on all the conflicts between disparate interests in today's societies and world. Far from maintaining order, today anarchy and violence prevail. Old ways of regulating factional fighting within the ranks of the rulers no longer serve their intended purpose of negotiating a truce between them while the people are marginalized, dismissed and their opinion is suppressed.
The irony is that in the name of preserving the democracy against autocracy, they are establishing a kind of autocracy and authoritarian regime of their own.
According to Justice Rouleau, there is the authority which imposes order and this is the condition for freedom. He is referring to a civil society which is said to recognize civil rights with what are called reasonable limits. To preserve order, those who bestow rights must also have the authority to deprive people of them but they must argue that they are maintaining a balance so as not to eliminate freedom. CPC(M-L) maintains that the security of the polity can only be achieved when rights are provided with a guarantee, not by suspending them.
But nothing is
said about rights -- where they come from, who
they belong to, what they are or how they are defended. The idea that
rights can be forfeited in certain circumstances prevails, while the
modern conception that they must be defended under all conditions and
circumstances based
on mobilizing the people to provide problems with solutions, is absent.
What is not said but presupposed is that authority, meaning order, is
final, it cannot be changed, and the authority recognizes rights so far
as they are not a threat to the authority.
Rights are an act of being. They belong to people by virtue of being human when they make claims on society which humanize the natural and social environment. Rights cannot be given, taken away or forfeited in any way. And no more can speech which is far more than a civil right; it is a human right which takes the form of an act of being, the act of a human person which lays a claim on society to something which belongs to the person by right of being.
Of course, this is not the conception Justice Rouleau is upholding. The "order" he speaks about is that of a Canada integrated into the U.S. war economy and machine and anything that threatens those interests is to be suppressed. Threats to "order" or "security" include disruption of trade corridors, transportation routes, energy corridors, supply chains, all of which are being rapidly transformed to serve the needs of U.S. imperialism's war machine. Why the disruptions take place is not analyzed at all while everything is done to justify the criminalization of Canadians and the claims they are entitled to make on society.
Rail
line blockade in Toronto in support of the Wet'suwet'en land defenders,
February 9, 2020. Such blockades are presented as threats to
"order" or "security."
Consider what Rouleau had to say about the draconian freezing of bank accounts. Without saying anything about the ease with which the state commanded banks to seize people's property, he notes that if the intent was to encourage people to leave the protests, there should have been a mechanism to unfreeze accounts once the aim of having people forced to leave the protests for lack of money to sustain themselves had been achieved. The consequences of a decision that leaves people with no money for food, rent and other necessities of life without warning is not even broached. Instead his concern is for the well-being of the banks.
"The absence of any specific rules about unfreezing caused concern for financial institutions, who were unclear how to determine when an individual listed on a report provided by the RCMP was no longer a designated person," Rouleau wrote.
Referencing the fact that joint accounts were frozen, leaving people who were not involved in any way in the Freedom Convoy without access to their accounts, he said, "It is clearly unjust for individuals with no connection to the protests to have their accounts frozen. The difficulty, however, is that this appears to have been unavoidable." End of story.
But it is not the end of the story. Canadian workers and justice-seeking people can comprehend what is in store for them under this kind of autocratic regime.
For his part, Justice Richard Mosley, who conducted a judicial review of the invoking of the Emergencies Act and related orders, does not agree with the flippant manner in which the Liberal government thumbed its nose at the law as it existed, to the extent that it refused to even release to the public the opinion of its own Justice Department on the legality of what it was doing. Justice Mosley said "the law is the law." You have power to change the law through Parliament, but you are not above the law. Justice Mosley delivered a rebuke to the Liberal government, but did not address the problem that the cartel parties, using their majorities or whatever deals are cooked up to keep a minority government in power, pass laws which deprive people of their rights under all kinds of pretexts, thus making the acts "legal."
From the vantage
point of the
working class and people, the issue is
not how to make the criminalization of people legal when they defend
their rights. Or when they exercise their right to conscience. When the
authority does not do its duty, then there is a clash between the
authority which
refuses to do its duty, and the act of being where the people do their
duty by laying claim to what belongs to them by right. What the
conditions require is clashing with the authority. Instead of arriving
at decisions through discussions, by providing convincing arguments and
reaching warranted
conclusions, state violence is used in the name of high ideals. This
must be stopped.
Rights are affirmed when the working class leads the people to assert an authority which changes the conditions in favour of the people and the people carry out their duty by ensuring that authorities do such a thing. People can perform their duty only if they exercise their right to conscience. This struggle, then, is central to the democratic renewal of Canada's democracy.
This article was published in
Volume 54 Number 22 - March 27, 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/MS54222.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca