Saturday, March 08, 2014

Quebec Charter Troubles

A closer look at the Bill 60, the so-called 'Quebec Charter of Values', has me scratching my head. I don't claim to be a legal expert. I probably don't have the correct technical vocabulary at my disposal. Still, I can't help but think that the Charter's proposed amendments to the Preamble and Section 9.1 of the Quebec Charter of Human Rights and Freedom (1976) with a lengthy reference to the values it promulgates--values things like 'state secularism' and 'religious neutrality', etc.--has overstepped some legal limit or violated some legal precedent. From the French Declaration of the Rights of Man and the Citizen (1789), to the American Bill of Rights (1789), to the Universal Declaration of Human Rights (1948), to the Canadian Charter of Rights and Freedoms (1982), to the Quebec Charter of Human Rights and Freedoms itself, no one seems to have thought it necessary to enshrine the secularity of the state.*

That is very strange. That is so strange, in fact, it deserves a moment's pause. Every single one of these other documents are bona fide 'secular' documents. They are 'the real deal' as far as pieces of secular legislation go. So why the difference?

My honest answer is that I don't know. I have my suspicions, of course. What I don't have is the knowledge or resources at hand to provide an exhaustive literature review. The best I can do is list a few things that come to mind.

My leading suspicion is that in amending the Quebec Charter of Human Rights and Freedoms, the PQ government has not the foggiest idea for what exactly bills/charters of rights are traditionally intended. Such documents were drafted for the protection of individual citizens against the arbitrary depredations of the state's representatives. Such documents are made law so that everyone plays by the same rules--and so, by extension, persons in position of authority don't abuse the authority the state delegates to them to see that its business is carried out.

It would never occur to the drafters of these bills/charters of rights to define the state as secular because their character is already intrinsically secular. It is in the very thing they give formal definition: that every single person possesses something like 'inherent dignity' and 'inalienable rights', which cannot be altered by any 'external' consideration--like a physical or mental handicap, or physical appearance or choice of clothing, or the sorts of groups they associated with, to name but a few possibilities.

By adding reference to the secularity of the state to the Quebec Charter of Human Rights and Freedoms, the Quebec Charter of Values seems to fall into the error of treating the state as if it were an individual, whose dignity and rights needed protecting. But protection from what or whom? Other individuals?

When a state has enshrined its own secular character alongside the dignity and rights of individuals, it seems to me something has gone very wrong. The state outsizes all the other persons in the room. In practical terms, the law no longer protects the 'inherent dignity' and 'intrinsic rights' of individuals qua individuals, but privileges individuals qua some external consideration or other.

While I have no objection to the Quebec government legislating for the protection French language and culture, using the Charter of Values to amend the Charter of Human Rights and Freedoms seems to be the wrong way to go about things.

The latter Charter is a great deal less free, after all, when the former Charter requires the following caveat is made:

“In exercising those freedoms and rights, a person shall also maintain a proper regard for the values of equality between women and men and the primacy of the French language, as well as the separation of religions and State and the religious neutrality and secular nature of the State, while making allowance for the emblematic and toponymic elements of Qu├ębec’s cultural heritage that testify to its history.”


*A friend of mine pointed at that the French Constitution of 1958 actually does make explicit reference to the secular character of the state. I note it also makes reference to the French language. The more I think about this, the more 'French' the Quebec Charter of Values looks, and the more Anglophone my thought processes appear.

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