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"Federalism and democracy:
the Canadian
experience"
Notes for an
address by the
President of the
Privy Council and
Minister of
Intergovernmental Affairs
the Honourable
Stéphane Dion
University of Manitoba
Winnipeg,
Manitoba
April 14, 2000
Check against
delivery
The title of your conference brings together the words
democracy and federalism. This is a very apt association
of words. I am convinced that democracy is essential to
federalism and that federalism helps democracy.
Federalism and democracy: this pair of concepts leads to
another: autonomy and solidarity. Indeed, every
federation experiences an ongoing dialectic between the
autonomy of its components and the solidarity that unites
them. This dialectic strengthens democratic values.
I would like to illustrate this point by looking at two
issues that are currently the subject of discussion in
Canada: our health system and the Clarity Act.
1. Democracy and federalism
Without democracy, genuine federalism is impossible. To
be sure, there have been dictatorships or totalitarian
regimes that have claimed to be federations. Some still
exist today. But genuine federalism presupposes the
respect of a division of constitutional powers between
two orders of government. If all the political power in
the country is in fact under the control of a single
party, it is difficult for the federative form of the
state to be anything more than a facade. It is within a
democracy that federalism finds its true meaning.
That being said, there are many democracies that are not
federations. While democracy is essential to genuine
federalism, federalism is not a necessary condition for
democracy, although it can be a useful one. It seems to
me there are two ways in which the practice of federalism
is a good school of democracy.
First, federalism values autonomy. Second, it cannot
function without solidarity. I believe that it is this
ongoing dialectic between autonomy and solidarity that is
a source of enrichment for democracy.
Let's look first at the virtues of autonomy. In a
federation, the federal government and the governments of
the federated entities, each with their own sphere of
autonomy, experiment with different ways of doing things,
which makes it possible to find the best solutions
through healthy emulation. So federalism, like democracy,
is biased in favour of pluralism, experimentation and the
competition of ideas.
The autonomy of each order of government is guaranteed by
the principle of the rule of law and of
constitutionalism. This valuation of the law serves
democracy well. In effect, modern democracy is impossible
without the rule of law, the principle whereby no one is
above the law, especially the lawmakers. The state cannot
flout the laws that it enacts, especially the fundamental
law of the land: the Constitution. On the contrary, the
state must set an example for citizens, by striving to
act always within the legal framework and fully
respecting the Constitution and its interpretation by an
independent judicial branch.
In a federal system, the state is made up of two orders
of government, each possessing powers circumscribed by
the Constitution, and because of this, respect for the
Constitution becomes the object of mutual surveillance.
Each order of government can go to the courts if it
believes that the other is infringing on its
jurisdiction, which provides citizens with additional
protection against abuses of power.
The principle of solidarity strikes me as much an
integral part of federalism as the principle of autonomy.
Indeed, while each order of government, each federated
entity, is autonomous, it is not so that they may ignore
each other. Rather, it is so that each, with its own
characteristics and capitalizing fully on its potential,
can better help the others. All the governments of a
federation are interdependent and must work together for
their citizens, over and above their political, regional
or other differences. The ideal of federalism is the very
opposite of internal separatism, it is genuine
solidarity. Here again, it represents an enrichment of
democracy.
Federalism, as the plural quest for common action that
respects the autonomy of all parties, and as a learning
process of negotiation and conflict resolution,
presupposes a large dose of tolerance. It necessitates an
ongoing practice of pluralism cultivates democratic
values.
2. The practice of federalism in
Canada
Our country knows all too well about this ongoing quest
for a balance between autonomy and solidarity. We have a
federation whose governments are very autonomous in their
own spheres of jurisdiction. The challenge is to have a
level of solidarity that is at the same time commensurate with that of
autonomy.
Our governments' extensive
autonomy stems from two sources. First of all, our
Constitution grants our provinces exclusive jurisdiction
in several areas that, in other federations, are
ordinarily areas of shared jurisdiction between the two
orders of government. Second, there is no parliamentary
institutional link between our two orders of government.
Unlike Germany, for example, we do not have a federal
upper house composed of representatives of the federated
entities.
As a result, we have a
federal government that is strong in its own areas of
jurisdiction and provinces that are strong in theirs. But
at the same time, these governments are interdependent.
They need to show solidarity with one another, especially
since their responsibilities have come to overlap more
and more as their respective spheres of activity have
expanded.
For this reason, the
Government of Canada has made considerable efforts in
recent years to strengthen cooperation between
governments. The Prime Minister of Canada wants to
bolster the ties between the two orders of government and
thus strengthen the federation as a whole.
And this is what Canadians
want. For example, an EKOS poll in April 1998 revealed
that a vast majority of Canadians (75%) - and 65% in
Quebec - believe that the federal and provincial
governments have a joint responibility to improve social
programs.
Improving cooperation
between governments is not a simple task. Of course, I
suppose it is normal that disagreements and conflicts
capture more attention than agreements.
It is also normal that
certain factors can render the situation more difficult.
For example, we know that the emergence of budget
surpluses heightens expectations, which can make
negotiations more difficult. Governments' political
orientations influence negotiations: there will be more
agreement if all parties believe in social policies, for
example, than if some are more lukewarm than others.
Personalities also play a role: for example, it is no
secret that British Columbia is now more open toward
cooperation than in the past, because of the leadership
of its new Premier. Finally, cooperation will of course
be more complicated if one of the governments does not
believe in the future of the country.
But despite all this, we
have succeeded in forging this closer cooperation. This
is evidenced by the various agreements concluded in
recent years, in such different fields as the social
union, environmental harmonization, social housing,
infrastructure works, the pension plan, assistance to
children, internal trade, or job training.
Just recently, on
March 23, federal and provincial agriculture
ministers reached a very important agreement on farm
income safety nets. Currently, our governments are
negotiating joint action in such areas as the environment
(to follow up on the Kyoto Protocol) and assistance for
the homeless. But the negotiation attracting the most
attention and generating the most tension between
governments, are in the key field of health care.
3.
Health: federalism in action
Our health system is one of
our federation's greatest achievements. Its evolution
demonstrates how we have been able to combine solidarity
and autonomy to respond to the needs of Canadians.
While it is generally a
shared jurisdiction in other federations, health care is
a provincial jurisdiction in Canada. This does not mean
that the Government of Canada does not have any
responsibilities with regard to the health of Canadians.
On the contrary, through its spending power - whose
constitutionality is recognized by the courts - it helps
to fund health care through a transfer to the provinces
that has only five conditions as set out in the Canada
Health Act. They are, in fact, five principles which are well
accepted throughout the country: universality;
accessibility; portability; comprehensiveness; and public
administration.
In addition, the Government
of Canada plays a role in several other ways, including:
drug licensing, disease and epidemiological surveillance,
provision of health programs for First Nations and
Inuit populations, signing of international agreements,
the use of criminal law (e.g., it is a criminal
offence to wilfully endanger the health of another
person), and in environmental policies, medical research,
and official statistics. These are all activities by
which the Government of Canada contributes to ensuring
that Canadians are one of the healthiest populations in
the world.
Of course, our governments
do not always agree on the division of roles in the
health sector. The risk of friction in this area is
considerable as the population is pressing them to act.
Health is an permanent priority for citizens. In Canada
as in other federations, they are not much interested in
knowing who is responsible for what under the
Constitution. They demand quality health services. All
governments are aware of this and therefore want to play
their role fully.
Hospitalization insurance in
the 1950s, medicare in the 1960s, the Canada Health
Act in 1984, all of these major reforms extended
throughout Canada thanks to the leadership of the federal
government, initially caused a great deal of friction
with a number of provincial governments. But Canadians
clearly supported these reforms. In a democratic
federation, the success of an initiative, whether it is
federal or provincial, often depends on the degree of
public support it obtains.
Today, the provincial
governments are calling on the federal government to
restore the CHST; to which it responds that this has
already been done. It was increased to $30.8 billion
in 2000-2001, cash and tax points combined, compared with
$29.0 billion in 1993-94.
All our governments have the
same objective: to give Canadians high-quality,
accessible health care for all, in accordance with the
five principles of the Canada Health Act. They
are all facing the same challenge: rapidly increasing
costs due to technological changes and, to a lesser
extent, aging populations. And all our governments agree
that it is not just a question of money: if we don't
change our practices, we won't be able to meet the rising
costs even if our fiscal situation has improved. Or
health care will consume such a large portion of
governments' budgets that they will no longer be able to
address Canadians' other social needs or to lower taxes.
How do we address this
situation? We show solidarity. We work together to
develop a plan that, while respecting the autonomy of
each, allows for effective joint action to not only
preserve our health system, but also improve it. There
needs to be autonomy, so that each can innovate in its
own way, and there needs to be solidarity, to better
guarantee the principles we all believe in.
This is the spirit of
federalism in democracy and this is the objective of the
Government of Canada. I am confident that the provincial
governments will agree and that Canada's health ministers
will work together to lay the groundwork for a productive
first ministers' meeting before the end of the year. In
so doing, we will have strengthened our health policies
by relying once again on solidarity and respect for
autonomy.
4.
Federalism and secession
I have said that federalism
is genuine solidarity. And yet, a break-up remains a
possibility. I will now demonstrate that the same
principles of solidarity and autonomy that are the basis
of the political culture of a federation must also govern
any process designed to put an end to its unity.
In democracy, all citizens
are called on to show solidarity to one another.
Secession, on the other hand, requires that we choose
those we want to keep as fellow citizens and those we
want to turn into foreigners. That is why reconciling
democracy and secession is such a difficult and sensitive
undertaking, one that has indeed never been successfully
achieved to date in a well established democracy.
Federalism, like democracy,
calls on citizens to show solidarity with one another.
This means that all Canadians are my fellow citizens
equally, even though it is normal that I have a special
attachment to my own province and care strongly about its
autonomy within the federation.
The territorial integrity of
a federation is every bit as guaranteed by international
law as that of a unitary country. As
Professor Luzius Wildhaber of the European
Court of Human Rights expressed it in connection with the
reference of the Supreme Court of Canada on Quebec
secession: "It would be unjust if it were otherwise.
(...) Centralized states would be in a more favorable
position to oppose secession by all lawful means and to
determine themselves which territories or peoples should
be entitled to secede." And after all, there are
some very respectable federations, democratically
speaking, such as the United States and Australia,
which declare themselves to be indivisible.
In its reference, the
Supreme Court linked Canadian unity to the federative
principle. In paragraph 42, for example, it
highlighted "the interdependence characterized by
'vast obligations, political and commercial' [which] has,
of course, multiplied immeasurably in the last 130
years."
The Court
stressed that this immeasurable interdependence cannot be
broken unilaterally by the government of a province.
There is no absolute right to secession (par. 97 and
139), there is a right to negotiate it within the
constitutional framework, on the basis of clear support
for secession (par. 87 and 88). The conduct of these
negotiations would have to respect the principles of
federalism, democracy, constitutionalism and the rule of
law, and respect for minorities (par. 90, 94 and
151).
The Clarity Bill,
which gives effect to the opinion by the Supreme Court of
Canada, is completely in keeping with the principle of
federalism. The bill fully respects the autonomy and
sovereignty of a provincial government in its areas of
jurisdiction and explicitly recognizes its right to ask
the question it wants in a referendum. But the bill also
stipulates that the federal government cannot undertake
to negotiate the end of its own constitutional
responsibilities toward a part of the Canadian population
unless that population has clearly expressed its will to
effect secession.
The principle of federalism
is incompatible with the idea that the government of a
province can unilaterally declare independence, that is,
appropriate the powers of the federal government, without
the latter having the right to make sure this is what the
province's population clearly wants, or without having
any say on how this transfer of power would be decided on
and implemented. Just as the federal government could not
abolish the government of a province, a provincial
government cannot appropriate the constitutional
responsibilities of the federal government in that
province.
The fact is that Quebec's
secessionist leaders are continually invoking imaginary
'rights', the right to act unilaterally, to use smoke and
mirrors to conjure up majority support for an option when
that support is simply not there, to refuse to take into
account Quebecers' constitutional rights toward Canada or
the rights of other Canadians, and to ignore the
authority of the courts and the very foundations of the
rule of law.
Having experienced
federalism has undoubtedly led Canadians to conclude that
their country has no meaning without the voluntary
adherence of all its provinces. But this same experience
has also led to another conclusion: the solidarity that
unites all Canadians as fellow citizens within the same
state cannot be broken unilaterally, in confusion and
illegality.
I am convinced that in
clarity, we Quebecers will never renounce the solidarity
that unites us to our fellow citizens in the other
provinces and territories. We will always strive to
strengthen Canadian solidarity, while caring deeply about
Quebec's autonomy.
Conclusion
Our federation is far from
perfect, but the way in which we have built and improved
it, has helped us to make Canada the admired country it
has become. We all have our ideas on how to improve it.
Indeed, such a learned audience as yourselves abounds
with ideas! I have merely suggested that we must be
inspired by these two great foundations of the federative
system in democracy: the principles of autonomy and
solidarity. Together, they form a dialectic which yields
excellent results for the life of our society.
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