Upholding Constitutions and the Future of Liberal Democracies
Opening Remarks for the Symposium on Constitutional Amendment in All Its Forms: the Belgian, Canadian and European Experience, held at Espace Roi Baudoin, Palais des Académies, Brussels, from April 18 to 20, 2018
Ambassador of Canada to Germany and
Special Envoy to the European Union and Europe
It is my honour to give the opening remarks for this high‑level symposium on constitutional matters.
You will have an opportunity to reflect on three cases: that of Canada, Belgium and the European Union. This comparison is relevant because these three entities are federal in nature and are liberal democracies. Genuine federalism and democracy cannot operate without the rule of law; they require a parliament that is elected directly by voters and a judicial body independent of political control that can restrict each level of government to its areas of jurisdiction as laid out in the constitution.
Of course, we need to keep in mind the different contexts.
Canada took on its modern constitutional form in 1867. It was originally designed as a centralized federation but became one of the most decentralized in the world. Belgium, in only a few decades, steadily progressed from a centralized, unitary government into a highly decentralized federation, and it was formally recognized as a federal state in 1993. The European Union is not a federation, nor does it have a constitution, but it has important federation‑like characteristics, and the 2007 Lisbon Treaty is similar to its ambitious constitutional plans, which were rejected by the referendums held in France and the Netherlands in 2005.
Canada has not changed its broad constitutional framework since passing the Constitution Act, 1982. Nonetheless, specific changes have been made, including those in 1997—which I had the honour of sponsoring in parliament as minister of intergovernmental affairs—which allowed for the secularization of school boards in Newfoundland and Quebec. In contrast, since 1982, Belgium and the European Union have carried out four and five broad constitutional reforms, respectively. But while Belgium’s reforms pursued a centrifugal process of decentralization, the European Union’s reforms consisted of a process of integration, which it describes as “an ever‑closer union.”
There are differences in context between Belgium, the European Union and Canada. However, these differences, to the extent that they are taken into account (and I have no doubt that this is what experts such as yourselves will do), make the comparison even more insightful. I would like to thank Dave Guénette, Patrick Taillon and Marc Verdussen for bringing us together to discuss this topic, and I would also thank them for inviting me.
I would like to take the opportunity of these opening remarks to make a meaningful contribution as part of my responsibilities as Prime Minister Trudeau’s special envoy to the European Union and Europe. Canada supports the continued existence of strong liberal democracies in the face of the authoritarian, populist wave. Belgium, the European Union and Canada are liberal democracies in a context where populism is challenging the rule of law and respect for the constitution as the fundamental law. This is the first topic I will be discussing: The importance of upholding the constitution when confronted with populism.
The second topic I will be discussing is a typically Canadian and also typically Belgian, call for moderation and calm. I call it “avoiding constitutional obsession.” In Belgium, the European Union and Canada, we have an opportunity to improve the lives of citizens without letting discussions take an existential turn. There’s no reason for all this uproar. Belgium, the European Union and Canada are indisputable successes on a global scale. Proposed reforms for improving our countries are much more likely to culminate in positive outcomes if the discussions are calm and not necessarily focused on the constitution. Recent history shows that we can make significant economic, social and cultural progress without having to change a single comma in the constitution.
1. Upholding the constitution when confronted with populism
Populism claims to represent the people and their pure will, and it is committed to protecting them against threats: from immigrants, foreigners, financial authorities, the elites (who are denounced as cosmopolitan, selfish and incompetent), and so on. Populism seeks to concentrate power in its own hands, on behalf of the people, and to weaken or politicize everything that stands in its way, even if it is protected by the constitution and the law such as an independent judicial system, freedom of the press, academic freedom, the prerogatives of Parliament relating to the executive branch or the impartiality of the public service.
Populism is authoritarian, but rarely is it openly undemocratic. The populist leader may support various forms of direct democracy, such as referendums. In the long run, the populist leader may remain an elected representative, although under conditions that make electoral defeat virtually impossible, given that the institutions of liberal democracy have been weakened to his or her advantage.
According to the 2017Authoritarian Populism Index,populism is on the rise in Europe. Nine European countries, including seven countries in the European Union, have populist parties in government. 1 Populists hold 17.5 percent of the seats in the European Parliament. 2 During the elections held in Europe in 2017, nearly one-fifth of electors voted for populist candidates or parties. 3 Some of these parties are radical left‑wing parties, but most are extremely right‑wing (even xenophobic and racist). These parties vary in their degree of radicalism and a distinction needs to be made, but taken together, they represent an undeniable challenge to liberal democracy.
The European Union in particular is in populism’s sights because it leaves itself wide open to populism’s targets of choice: cosmopolitanism, technocracy, supra‑national compromises, trade agreements, restrictive budgetary rules, open borders and migratory tensions.
Elsewhere in the world, populism and various forms of authoritarianism compete with liberal democracy on several fronts. Freedom House, The Economist’s 2017 Democracy Index and the 2017-2018 World Justice Project Rule of Law Index have all noted a global decline in political rights and civil liberties. 4
I cannot discuss here everything that needs to be done to stop the rise of populism: defending the independence of the judiciary and other institutions and making them more effective, transparent and diligent; communicating better with the public by distinguishing in particular the facts from erroneous perceptions, including on social networks; adopting better practices to integrate immigrants; providing improved assistance to countries torn by war and poverty; finding a path toward inclusive growth that does not benefit solely the richest 1% or 0.1%; negotiating progressive trade agreements; reviewing political party financing; vigorously fighting corruption and tax evasion; and so on.
However, this I know for sure: Liberal democracies must lead by example by upholding the rule of law, even more stringently than they did before. Populism tends to present the constitutions of liberal democracies as cumbersome documents that interfere with the will of the people, and it is precisely for that reason that constitutions must be upheld and defended for what they are—the key foundation of democracy and the rights and freedoms of citizens.
First, we need to agree on what a constitution within a liberal democracy is. It is the foundation for the rule of law, which states that there is only one law for everyone, and no one is above the law, especially lawmakers. The constitution is not an impersonal document, cold and legalistic, out of touch with the public. It is the fundamental law, the law of laws, the law that creates and limits the powers of parliament and government and gives citizens their rights. If we want to eliminate or change some of these rights, then the constitution itself must be amended, in accordance with the procedure provided for this purpose. The procedure for a constitutional amendment must be onerous in terms of the enhanced majority required, in order to protect against the capriciousness of the majority or the government of the day.
In 1998, the Supreme Court of Canada eloquently noted the following in its Reference re Secession of Quebec. 5 The Constitution “provides a shield for individuals from arbitrary state action.” The Court argued that “the argument that the Constitution may be legitimately circumvented by resort to a majority vote in a… referendum is… unsound, because it misunderstands the meaning of popular sovereignty and the essence of a constitutional democracy.” “A constitution is entrenched beyond the reach of simple majority rule.” “There are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection.” Governments “may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.”
Although it was in a very different context (in an opinion on the constitutionality of a unilateral secession) that the Supreme Court of Canada issued these reminders regarding the importance of constitutionalism and the rule of law, it is good to recall these principles when confronted with the rise of populism. One of the worst mistakes that liberal democracies can make is to fail to uphold their constitutions themselves or to allow others to fail to do so.
2. Avoiding constitutional obsession
It is clear that we must uphold our constitutions. However, we should not turn constitutional review into an obsession. It is possible to improve the lives of citizens more efficiently through channels other than constitutional review. This is especially true when the procedure for constitutional amendments is very onerous in terms of the majority required.
We have reached this stage in Canada. In order to ensure the protection of minorities and regions, we have established a very onerous amendment procedure. The Constitution Act, 1982, stipulates that, in most cases, a constitutional amendment must be approved by the federal parliament and seven out of the ten provinces, representing at least 50 percent of the population. We commonly call this the 7-50 rule. In 1996 we added the regional veto legislation, which requires the consent of Quebec, Ontario and British Columbia and at least two provinces representing 50 percent of the population of the Atlantic provinces, and at least two provinces representing 50 percent of the population of the Prairies (which, indirectly, gives Alberta a veto). In summary, the 7-50 rule has become the 7‑90 rule: We need the agreement of seven provinces representing 90 percent of the population.
In addition, political pressure makes it difficult to undertake large‑scale constitutional reform without holding a referendum (Alberta and British Columbia have made this a legal requirement for themselves). One might even wonder whether a majority of Canadian voters would be enough for the amendment to pass or whether a majority might also be required in each province. As well, it would be difficult to pass an amendment without the support of the three northern territories and organizations representing Indigenous peoples.
Finally, we are not certain whether, in Canada, constitutional amendments affecting the country as a whole can still be negotiated on a piecemeal basis. If a government were to propose an amendment—such as senate reform—other governments might ask that their own demands be discussed as well. The Government of Quebec is very firm on this point. The New Democratic Party envisions constitutional negotiations relating to both Quebec and Indigenous peoples. 6
The European Union has also gotten to the point where the path to change seems particularly uncertain if it is to go through the process of negotiating a new treaty. Not only would it need unanimous support from its member states—there are now 28, or 27 after Brexit—but we should also expect to see various national referendums being held where the outcome is uncertain.
In Belgium, as we know, a full review of the constitution is off the table, and all partial reviews must be proposed by the outgoing parliament and approved by a two-thirds majority of the incoming parliament following the elections. Therefore, it would be necessary for the current parliament to come to an agreement prior to the elections scheduled for 2019 in order for a new constitutional review to take place. I know that questions are being raised in Belgium today about the relevance of undertaking a seventh constitutional reform since 1970, and above all whether this reform should be centrifugal, as was the case with the previous six, to the point of weakening further the Belgian federation’s shared institutions.
It is not the role of a foreign diplomat to address these concerns, but I can at least give the example of Canada. Since the path of constitutional reform proved to be particularly difficult and resulted in failures and painful divisions, we pursued other channels to improve our country. We let go of our constitutional obsession and we came out stronger.
In the 1980s and 1990s, we allowed ourselves to be convinced that, unless we made fundamental changes to our constitution, the following would occur:
- Quebeckers would not want to stay in Canada.
- The French language would disappear in Quebec.
- The Canadian federation would be centralized in the hands of the federal government.
- Or just the opposite, it would splinter in the hands of the provinces.
- Canada would be buried in debt and go bankrupt.
- Canada would be doomed to economic decline and high unemployment.
Today, French is spoken by about 95 percent of Quebeckers. Polls show that about 70 percent of Quebeckers are proud to be Canadian. The Canadian federation is still one of the most decentralized in the world. Canada has significantly reduced its debt‑to‑GDP ratio, boosted its economy and is approaching full employment. All of this was achieved by hard work and by taking different paths to change, but without making fundamental changes to the constitution.
Separatist thinkers have acknowledged this. Joseph Facal, former Parti Quebecois minister, said that [translation] “First, there is the undeniable fact that Quebec has succeeded in modernizing and thriving within the Canadian political system.” 7 Or Jean‑Herman Guay, former vice‑chair of the Bloc Quebecois policy committee, who is asking : [translation] “how to maintain the idea that Canada wants to “suffocate” Quebec, when the country is already relatively decentralized (...).” 8
In 2017, the Government of Quebec published an action plan to strengthen the leadership that the mostly Francophone province exercises within the Canadian federation. 9 This comprehensive document includes several proposals that are very interesting, and most of them do not require amendments to the constitution. Some of them do require constitutional negotiations (such as the constitutional recognition of Quebec’s distinctiveness), but the Government of Quebec has indicated that this is not a pressing matter. Just about the only people who have criticized the government for not giving the rest of Canada a constitutional ultimatum are Quebec separatist leaders. We can imagine that they are not looking to improve the Canadian federation but rather hoping that the failure of Canadian constitutional negotiations would revive the separatist movement.
That, by the way, is a sign: When the people who are calling the loudest for the urgent renegotiation of a union’s constitution are those who want to leave this union, it is perhaps time to ask whether constitutional reform is so very urgent and whether it might not be more appropriate, from the perspective of improving the union, to consider other avenues of change that are more promising and pragmatic.
It may be useful to recall the difficulties associated with leaving a union. Breaking up a union is often more difficult than one thinks, especially when one commits to it on the basis of an uncertain majority, when one rushes an unsure, divided population into it. In Canada, we had to clarify the procedure by which a province can leave the federation, which resulted in the Supreme Court opinion of 1998 and the Clarity Act, 2000, which gave it effect. By focusing on the problems of exiting the union, we were able to appreciate more the union we had and work together to improve it.
I cannot comment too much on the domestic policy of Belgium or the European Union. However, I will remark that both Belgium and the European Union have undergone a significant economic recovery over these past few years without having to make any new constitutional amendments.
I would like to note the following:
- The unemployment rate within the European Union is at its lowest level since December 2008.
- The degree of trust toward the European Union, as measured by the Eurobarometer, is at its highest since the fall of 2010. 10
- Moreover, it has continued to increase almost steadily since the fall of 2015, as though the fanfare surrounding the difficulties of the Brexit process has strengthened the cohesiveness of Europeans and their desire to keep their union.
- According to the European Commission, all the reform proposals of its president, Jean-Claude Juncker, and most of the reforms put forward by the President of France, Emmanuel Macron, could be implemented on the basis of the Lisbon Treaty, including the implementation of the following: a European monetary fund, a more extensive banking union, a European cyber‑security agency, a European public safety agency, a European asylum office, a European intelligence academy, a European agency for monitoring food safety, a European university network or a base price per tonne of CO2. 11
I would like for liberal democracies to lead by example by upholding the rule of law and their constitutions because this is one of the conditions that will allow them to remain strong, healthy and on the road to improvements, and will help the world resist authoritarianism and populism.
I suggest that constitutional review should not become an obsession. By taking other avenues, we can find more certain and effective ways of improving the state of the union and the lives of our fellow citizens.
These are two proposals that I am making to open this symposium, which looks to be highly interesting and for which the subject matter (the constitutions of three liberal democracies), beyond its technical and legal nature, speaks to the rights and quality of life of our fellow citizens.
1 Heinö, A.J.; Caccavello, G.; Sandell, C. (July 2017). Authoritarian Populism Index 2017, European Policy Information Center. Retrieved from http://www.epicenternetwork.eu/wp-content/uploads/2017/07/TIMBRO-Authoritarian-Populism-Index-2017-Briefing.pdf.
4 Munich Security Conference (February 2018). Munich Security Report 2018: To the Brink – and Back?, pg. 6. Retrieved from http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwjfhZa0kLnZAhUPylMKHRf4BX0QFgg4MAI&url=http%3A%2F%2Freport.securityconference.de%2F&usg=AOvVaw1kVF3qxid9Zot3rHGsijuq.
World Justice Project (January 31, 2018). 2017-2018 WJP Rule of Law Index: Global Press Release. Retrieved from https://worldjusticeproject.org/news/2017-2018-wjp-rule-law-index-global-press-release.
The Economist Intelligence Unit (2018). Democracy Index 2017: Free speech under attack, The Economist Group. Retrieved from http://pages.eiu.com/rs/753-RIQ-438/images/Democracy_Index_2017.pdf.
5 Reference re Secession of Quebec,  2 SCR 217. Retrieved from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do
6 New Democratic Party (February 2018). Constitutional reform, resolutions: Governing in a Fair and Inclusive Canada. 2018 NDP Convention, Ottawa. Retrieved from http://xfer.ndp.ca/2018/ottawa2018/NPD-Resolutions_5-fr.pdf?r=1.
7 Facal, J. (January 19, 2010). Quelque chose comme un grand peuple, Éditions du Boréal, pg. 130. http://www.editionsboreal.qc.ca/catalogue/livres/quelque-chose-comme-grand-peuple-1719.html. The author makes a distinction: [translation] “In my opinion, it was in spite of the regime rather than because of it…”
8 J.-H, (October 24, 2017). Sovereignty at an Impasse: The Highs and Lows of Quebec Nationalism. Institute for Research on Public Policy. Retrieved from http://irpp.org/research-studies/sovereignty-at-an-impasse-the-highs-and-lows-of-quebec-nationalism/.
9 Secrétariat aux affaires intergouvernementales canadiennes and Direction des communications (2017). Québécois : Notre façon d’être canadiens. Politique d’affirmation du Québec et de relations canadiennes, Government of Quebec, ISBN 978-2-550-77866-0 (online). Retrieved from https://www.sqrc.gouv.qc.ca/documents/relations-canadiennes/politique-affirmation.pdf.
10 Eurobaromètre Standard 88, Premiers résultats: L’opinion publique dans l’Union européenne, Étude commandée et coordonnée par la Commission européenne, Direction générale Communication, Novembre 2017, https://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwijpaq-6bHaAhVq7YMKHWYRAc8QFjAAegQIABAw&url=https%3A%2F%2Fec.europa.eu%2Fcommfrontoffice%2Fpublicopinion%2Findex.cfm%2FResultDoc%2Fdownload%2FDocumentKy%2F81150&usg=AOvVaw0Go2R8wuVIvliE8Qu2DZ9O.
11 European Political Strategy Centre (2017). Two Visions, One Direction: Plans for the Future of Europe as laid out in President Juncker’s State of the Union and President Macron’s Initiative for Europe. TheEuropean Commission. Retrieved from https://ec.europa.eu/epsc/publications/other-publications/two-visions-one-direction---plans-for-the-future-of-europe_en.
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