Banana republicanism

‎"Special law" is every bit the contradiction in terms that "student strike" is. Emergency decrees and bills of attainder aren't laws, and I won't be referring to Bill 78 as a law except in scare quotes.

On the other hand, my patience for playing along with the phrase "student strike" ran out as of the UQAM protests this week, when the protesters prevented students and professors from meeting together for educational purposes, screaming "scab" at the students who wanted to attend class. Calling it a strike means calling the students who want to attend class scabs, and calling their attempts to attend class illegitimate, so I won't be doing that either.

So, that said, some first impressions of the proposed decree.

1. Section III is entirely illegitimate. I don't know whether it passes Charter review; I am not a Canadian lawyer. But it is an absurdly draconian violation of freedom of assembly and indeed freedom of movement. It's police state stuff, unworthy of a free society.

2. Section V.29 multiplies the reach of every other punitive and prohibitionist part of the act, so much so that it renders Sections III IV, and V as wholes illegitimate. It amounts to the category of conspiracy-by-omission. It means that not only anyone who talks to student protesters or protest leaders over the next several months is vulnerable to prosecution, but that even avoiding them won't keep you safe. Again, police state stuff.

3. If one were to detach V.29, Section IV and the rest of Section V start to look more complicated. They skirt awfully close to the line of being a bill of attainder; they're certainly not a normal case of lawful governance. But the boycott has created a legally strange situation. The boycotters, calling what they're doing a "strike," assert a collective democratic right to prevent students and professors from carrying on classes. But the concept of a student strike is unknown to Quebec law. That doesn't mean that it's illegal; it's not prohibited, and in a a free society that which is not prohibited is allowed. But striking is not only a refusal to do something; it is also an assertion of the authority to prevent others-- "scabs"-- from doing it. That makes it less like "assembly" and "speech" and more like "contract" or "will," come the moment when the beneficiary of a contract or a will seeks to take possession. In order to maintain peace and keep clear on what everyone's rights are, we normally rule out self-help and don't treat "contract" or "will" as things that one can just be left alone to do. They're powers partly constituted by law, exercisable in ways described and prescribed by law.

If I say that you and I had a contract, but it was oral and unwitnessed, and I try to seize the goods to which our supposed contract entitled me, you call the police to protect yourself and your goods. To that, it is insufficient on my part to say "unwitnessed oral contracts aren't prohibited." What I say is true, but it's also true that an unwitnessed oral promise does not rise to the level of "contract" that legitimizes coerced performance. Your right to carry on unmolested by me is something about which the law can't just be agnostic.

In a strike-as-constituted-by-the-labour-code, employers and would-be replacement workers have their freedom of action limited. The strike isn't just an action by the workers; it's an authorized limitation on others. The student unions, purporting to strike, have tried to self-help their way into that same ability to limit the actions of others. The law can't just be agnostic about whether students who don't wish to boycott may attend class unmolested, whether universities may protect their classrooms from disruption and protect access to them. And since this is not a legally-constituted strike, the legal answer is that those who wish to carry on with their educational activities are free to do so. Injunctions to protect their access, like legal action to prevent me from carrying off your stuff that I say you promised me, look aggressive but are legally defensive, defending the legal freedom of those the protesters want to characterize as "scabs" but who are not in a legal position like the would-be replacement workers during a labour strike.

The injunctions have been flouted; and protesters have repeatedly created situations where police have to choose between not protecting the rights of universities, professors, and dissenting students or trying to coerce large determined crowds of protesters. When they opt for the latter, they use the ugly and abusive tools of riot control against people who were not rioting but who were obstructing the legal rights of others, en masse. There is no peaceful way to move hundreds or thousands of people who do not wish to be moved. And there is also no rule that whatever hundreds or thousands of people together want to do must be legitimate. This has been the paradoxical situation of the last several weeks in particular. The police have been first to use violence, at least large-scale violence, over and over again; but that doesn't mean that the injunction-flouting protests were legitimate.

I don't know enough about Canadian civil procedure to know why contempt of court proceedings couldn't be used to do what Section IV of the emergency decree tries to do: coerce the unions through crippling financial penalties in order to try to stop having to violently coerce the bodies of protesters. That would be preferable to this kind of legislative action. But some attempt to hold unions responsible for protests that flout injunctions and disrupt the legal freedom of others does seem legitimate, and preferable to constant situations that can be resolved only through police violence or through abandoning the freedom of third parties to the whims of the protesters. The unions are creatures of Quebec law, with power granted by law to compel dues payment from students; but they have helped themselves to an authority that isn't granted by the law that creates them, and when others have ignored that supposed authority have freely encouraged lawless response. It's awfully late in the day for their leaders to discover that "social peace" is at risk. Their attitude toward injunctions and toward the rights of universities, professors, and dissenting students has been one of "contempt for the rule of law," as Bernard Amyot, former president of the Canadian Bar Association put it. That doesn't excuse the government from blame for its own abandonment of the rule of law in the new emergency decree.

As with the ban on masks, illegitimate behavior by the protesters is going to met by an illegitimate response, deeply restricting what should be protected freedom of expression. Section III and Section V.29, like the ban on masks, are opportunistic expansions of state and police power far beyond what is needed, or what is compatible with liberal freedom. And Section V.29's multiplier effect on the rest of the act pushes all of Sections IV and V into that category. But for the student unions to suddenly appeal to the rule of law and freedom of assembly when they've scorned those for everyone else is a bit much. The upshot is a lot of damage all around to Quebec's ability to function as a free society.

Update: While I was writing this post, the Montreal city council unsurprisingly passed the awful ban on masks. Kafka-esque question-begging of the day:

The leader of one of the city's opposition parties, Louise Harel, asked for clarification on whether scarves or bandanas worn by protesters protecting themselves against chemical irritants or tear gas would be included in the ban.

A lawyer for the police insisted those scarves are considered masks under the bylaw. The reasoning is, according to the lawyer, that if tear gas is being deployed, the demonstration has already been declared illegal.