The BCTF, the BC Liberals, and Occupy Central

The BCTF, the BC Liberals, and Occupy Central September 4, 2014

Premier Christy Clark opens Agriculture Centre of Excellence - by University of the Fraser Valley (13647995634_15fefecf31_b.jpg) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via Flickr
Premier Christy Clark opens Agriculture Centre of Excellence – by University of the Fraser Valley (13647995634_15fefecf31_b.jpg) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via Flickr
On September 2, the BC Liberal government made an astonishing concession about the teachers’ strike held by the BC Teachers’ Federation (BCTF). Please forgive my Facebook Pirate English settings:

 

 

 

 

For those who have not eyes to see, here is the concession:

This week I called the head of the BCTF, Jim Iker, and the lead negotiator for school districts, Peter Cameron, to my office. I mapped out a path to settlement: set aside the grievances associated with the ongoing court case. That’s before the court so let the courts decide. Focus instead on the issues we can agree on like wages, benefits and putting more educators into classrooms for students.

Considering the rulings of two previous BC Supreme Court judges on how the BC Liberals have not bargained in good faith with the BCTF, this is an astonishing admission. This statement puts to rest all the rumours that the BC Liberals do not care about the rule of law. That’s because they are no longer rumours. They are a matter of public record.

In fact, to make the record absolutely clear, there has been an even more detailed document dump about the 2011 BC Supreme Court case that made it clear that the BC Liberals acted unconstitutionally when it passed legislation to hamstring the BCTF’s freedom for collective bargaining.

Such developments in the BCTF strike form an interesting rejoinder to Douglas Todd’s column that argued that ‘we must stand on guard for Canada’ because (as he alleges) non-Western immigrants may not share our liberal, Western values of tolerance, multiculturalism, and the rule of law. With the recent (geo)political unrest in Hong Kong, Todd may well be worried that there is a new influx of migration coming from that Special Administrative Region. In fact, there is a very recent piece in the South China Morning Post expressing sentiments that it would probably not be a good idea to live in Hong Kong right now.

However, given a trans-Pacific view that straddles Hong Kong and Vancouver, it seems to me that if migrants were to arrive in Vancouver from Hong Kong, they’d have a lot to teach British Columbians about the rule of law. That’s because the democratic movement that’s been all the rage recently, Occupy Central with Love and Peace, is all about constitutional law.

I will grant you that not every migrant from Hong Kong will be associated with Occupy Central. Far from it: if the SCMP piece is to be believed, many will use migration as an ‘insurance plan’ to avoid geopolitical unrest and potential business instability.

But if things go south with Occupy Central, what’s happening in Hong Kong may also produce a set of political exiles. Those people will have a lot to say about the rule of law. Indeed, they will have a lot to teach the BC Liberals.

In fact, there are some remarkable parallels between the BCTF strike and Occupy Central. In both cases, the democratic parties seek to educate the public about their grievances with a pro-business government. In both cases, the pro-business government then begins to rearticulate these grievances as inimical to the public interest. The public interest, we are told by both Beijing and the BC Liberals, is if business is allowed to remain unhindered and the flow of money stay unobstructed. This is a remarkable political tactic, indeed producing putatively wide-ranging public support.

The problem is that this is not actually an appeal to the public interest. It’s an appeal to the private interests of individual citizens. It is indeed in the interest of individual business owners with investments to have their economic transactions unobstructed. But get the terms right. These are private interests. Therefore, there is no ‘public’ supporting these governments. There are only individual citizens whose interests are for themselves, not for the common public good.

The public interest is the rule of law. That’s because what’s at stake in the rule of law is a society, a people whose association has a constitution, an articulation of what a body politic takes to be the common good. In Hong Kong, the constitution that sets the framework for its ‘one country, two systems’ relationship with the mainland is called Basic Law. In Canada, the constitution, as passed by the 1982 Constitution Act, is called the Charter of Rights and Freedoms.

In Hong Kong, the Occupy Central protesters argue that the Basic Law framework is being eroded because of constitutional violations. As Benny Tai made it known in an interview with Bloomberg, these constitutional violations cannot be dealt with in court. That’s because in 1999, the Ng Ka Ling case, a human rights/migration case that was decided by Hong Kong’s Court of Final Appeal, was overruled by Beijing, demonstrating the limits of ‘one country, two systems’ — certainly, the judiciary is not autonomous. Therefore, when Occupy Central discusses Basic Law’s Article 45, the part that says that Hong Kong people have the political agency to choose their own Chief Executive, the activists realize that Article 45’s integrity is being eroded by an erosion to the ‘one country, two systems’ framework, namely through the White Paper released in June in which Beijing asserted its unequivocal sovereignty over the territory. That’s why Occupy Central is prepared to engage in acts of civil disobedience: it is prepared to use public protests to draw attention to these flaunted constitutional violations.

The same is true for the BCTF. In the 2011 BC Supreme Court case, the judge ruled that the BC Liberals had violated the Charter of Rights and Freedoms by passing legislation that obstructed the BCTF’s right to assembly — and thus collective bargaining. However, what’s at stake between the BCTF and the BC Liberals at the moment is a contract that would do the same thing with two clauses, E80 and E81, that basically eviscerate the teachers’ right to collective bargaining. In other words, just like Beijing, the BC Liberals are publicly flaunting their disregard for the Canadian constitution, which is what is provoking the very public BCTF strike. In fact, the analysis of such constitutional flaunting is fairly damning: it suggests that the BC Liberals are trying to bankrupt the BCTF through a waiting game instead of respecting the rule of law.

What this means is that Douglas Todd points his finger at the wrong people when he asserts that Canadian values are under attack. For Todd, it’s the immigrants. But cast in this light, those from Hong Kong who understand the constitutional issues at stake in Occupy Central have a great deal to say about the importance of the rule of law and constitutional integrity. If they become political exiles, they should be welcomed to British Columbia, precisely because they would make Canada’s constitutional civil society stronger. That’s because unlike the BC Liberals, their experience with Occupy Central means that they would understand that the constitutional rule of law is a public good.

In other words, the clear implication of Todd’s logic to stand on guard for Canada is this: immigrants should be in, and the BC Liberals should be out.

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