For those not following the situation in Québec – or for those following it only through English media, which is almost worse than not following it at all – Premier Jean Charest has implemented draconian laws to restrict protests as an emergency measure against the ongoing student strike. The government asserts that they are concerned with protecting the rights of non-striking students to go to class without disruption by the strikers. Law professors and striking students, on the other hand, have called it a violation of fundamental rights. Both sides claim they’re protecting people’s rights; so it sounds like it’s time for another Saturday Cerebration!

To understand the government’s justification for the law, the best thing you can do is not listen to what the lawmakers are saying. This is not to say that I’m accusing them of being deceitful about the purpose of the law, but rather that they have been bumbling idiots in their public relations. They have claimed that they passed the law to bring respect and calm back to Québec. (That’s actually Justice Minister Jean-Marc Fournier, by the way, in a direct quote, via the The Globe and Mail. I’m seriously not making that shit up.) They have also defended the law by saying that societies have found it reasonable to impose certain constraints, first of all to protect protesters…. (That’s Public Safety Minister Robert Dutil, via CBC.) You could burn out your brain trying to speculate on exactly what might threaten 200,000 students marching in unison with media cameras on them all the way – other than the armoured and armed police, and if they are the threat, then the lawmakers should probably be more concerned about restricting their power rather than the students’ – or asking, if “respect and calm” is so important that it warrants silencing protest, why not just pass laws to silence all dissent, but Saturday Cerebration is not about giving you an aneurism trying to detangle politician-logic.

Instead, to understand a solid justification to the law, consider this: about two-thirds of Québec students are not on strike, and just wish to go to their classes and finish their education. Some of them have even filed court injunctions to prevent protesters from blocking them from being able to go to class. And in some cases, those court injunctions have been flaunted, as protesting students blocked or disrupted classes that went ahead. There were even reports of violence and intimidation.

Now, obviously, no one supports violence, harassment or intimidation on either side, but there are already laws to deal with those things. And certainly, if the goal is simply to prevent violence, harassment and intimidation, silencing protest is, to paraphrase Tommy Douglas, using a sledgehammer to crack a peanut. But what about just the disruption caused by the strikers – not just to students who want to go to classes, but also to the businesses in the areas where they march, and the general population when the massive marches block off huge sections of the downtown core. It could be argued – and some people have tried, clumsily, to argue it – that they have rights, too: rights to go to school and work, and generally go about their lives without undue disruption. Indeed, the purpose of government is specifically to make sure they they can do those things.

The specific actions taken by Bill 78 are, undeniably, fucking stupid. Even with the most generous interpretation of its purpose – as I’ve given it – it’s still fucking stupid in its execution. I don’t know what the hell is going through Charest’s head. Maybe he thinks he’s channelling Trudeau and trying to show what a hardass he is with his “just watch me” moment. But at least Trudeau had the excuse that people were dying; Charest’s excuse for acting now is that he’s a cheapskate, and too stubborn to deal with the students for over three weeks. No, the bill is fucking idiotic, period, even if the justifications for it are sound. The Commission des droits de la personne et des droits de la jeunesse (the Commission of Human and Youth Rights) is on the case, though. What I an interested in is – even though the implementation of the bill is stupid – whether the justifications for it are sound.

Why the right to protest is important

First, assume a perfect democracy or democratic republic; that is, assume a country where the majority will is accurately determined and precisely implemented in all questions. Canada and Québec are, of course, not perfect. Certainly, there are some glitches. But we’re alright, viewed broadly.

Now, most people would assume that this would be an ideal state of affairs, but that’s not quite the case. While majorities will have their will carried out perfectly, minorities will not. Some callous bastards will shrug that off, saying that’s just the way democracy works. Well, it is the way democracy works, but that doesn’t make it right. Very often, minority groups are dealing with situations that are not well understood by the contrasting majority, and, sometimes, issues that most people just don’t care about.

As a real-world example, consider transgendered people. These people come in all flavours: some have male sexual biology but female gender (they have a penis, but feel female), some have female sexual biology but male gender, some are intersex (they are neither biologically male nor female – they may be a bit of both, or neither) and may identify as male or female or both or neither… and so on and so forth in a wild and beautiful chaotic map of diversity. Most tolerant people would shrug and say: “So what? I don’t have a problem with that. It’s a free country, they can be whatever they are, or want to be.” Really? How would you feel – assuming you’re a cis-woman (female biologically, with female gender identity) – if someone whipped out a cock in the women’s bathroom? Hm? Or – to take advantage of another topical issue – imagine you’re a cis-female Olympic athlete, with a real shot at the gold… only to find yourself standing next to someone a third of a metre taller than you, with broad shoulders, deep voice, no breasts, and facial hair. That’s a real problem. and the hard truth is that there are people born with both male (XY) and female (XX) chromosomes, so they’re really neither (or both).

The point is: their issues simply aren’t a concern of the majority, and, worse, the majority may be entirely unsympathetic to their plight, or even hostile to it. And sometimes, their fundamental rights and dignity may be trampled on by the uninterested, or openly hostile, majority. This is not a rare occurrence in history. Racial segregation laws, anti-gay laws, laws that discriminated against women… all of these are laws targeted at minorities (except women, who, while technically not a numerical minority were and are certainly a minority in terms of social power) who were – and in some cases still are – being unfairly and unjustly treated by a disinterested or antagonistic majority.

Of course, we have laws against that kind of discrimination. The Canadian Charter of Rights and Freedoms (and the Charte des droits et libertés de la personne, incidentally) is supposed to prevent exactly that kind of tyranny against a minority by the majority. (Arguably, all laws exist to protect minorities – particularly minorities of one, ie, individuals. Because if a majority is under attack, they’re really in no danger.) Thing is, it’s not easy to get a Charter challenge, or any human rights case, under way. It requires extensive legal expertise, and it’s fucking expensive. It can also take years, while the victims of a bad law continue to suffer under its weight. Not to mention that it’s not hard for hostile judges to simply throw out legitimate cases rather than allowing them to move up the judicial chain. (My personal favourite example of this is an American example. Michael Newdow tried to challenge the constitutionality of the words “under God” in the pledge, saying that when his daughter was made to recite it in school, she was being forced to acknowledge a God in defiance of separation of church and state. His case was thrown out… because he didn’t technically have legal custody of his daughter.)

The hard truth is that when a minority is being unjustly treated, it is extremely difficult, if not impossible, to get justice done when faced with a majority’s chronic don’t-give-a-shit-itis. You can embark on a campaign to make the majority aware of the issues, and sympathetic to them, but that can sometimes take generations to take effect. It is unjust and calloused to simply tell the people living under the weight of the injustice to just shut their holes and put up with it until the lethargic majority starts to take an interest in them.

Hence, the protest.

The point of a protest is to get in the faces of the disinterested majority, and force them to do something about the minority’s complaints. The idea of a protest is that the small group makes itself a big issue by getting in the faces of the majority. They do this by disrupting the normal day-to-day activities of the majority. This, of course, makes the majority pressure the democratically-controlled leadership to do something about the minority, if only to make the disruptions end.

Recall, though, that I’ve been talking about protests against unjust, and often illegal, treatment of the minority. Thus, when the government is pressured by the majority to act, they have a choice: treat the minority group even more unjustly – possibly with even more illegal laws and actions against them – or… give them the justice they are asking for. Of course, sometimes the government does make the bad choice, and you end up with shit like police beating or spraying protesters – or Bill 78 – but when that starts to happen, the majority generally stirs, and realizes… hang on, something’s wrong here. They don’t always stir – they may just sit back and not care at the protesters being beaten, arrested, and further stripped of their equal rights, and justice; protesting is not a sure-fire way to get what you want, and there are considerable risks. But in a progressive and free society, generally government can’t get away with that kind of shit (for too long), so eventually… they will have to do the right thing.

What about if the protest’s demands are ridiculous? What if the protest is not about injustice? What if it’s just a minority trying to grab more than their fair share from society? Well, first, remember that protesting is dangerous; if the majority doesn’t protest any draconian actions taken by the government, the protesters are fucked. But protesting is also costly to the protesters. Often you have to give up most or all of your livelihood to maintain a protest. And, after time, if there’s no sign of success, weariness eventually sets in. The key this is that if the protesters do have a legitimate issue, then when the majority pressures the government to act, the pressure will probably be to deal with the issue properly. But if the protesters do not have a legitimate issue, it is unlikely that the majority will pressure the government to give in – more likely they’re pressure the government to crack down. So if a group doesn’t have a legitimate issue, they stand to lose big. Protesting is a very high-risk venture.

Of course, even if the protest’s demands are valid, if they can’t muster up enough attention and disruption, and sustain it for long enough, they will fail, too.

That’s what protests are for, and that’s what they do. In a democracy, when a minority is being unjustly or illegally treated, protesting allows them a chance at justice, by using social disruption to provoke an otherwise disinterested majority into taking up their cause… effectively turning themselves into a majority. If the majority is not merely disinterested, but hostile, protesting will still work, though it becomes much more dangerous, because when the government is pressured to act, they must either choose to do the right thing (give the minority justice) or do the wrong thing (crack down on the protests), and if they choose to do the wrong thing, then even though the majority is not sympathetic to the minority’s cause, they will not be pleased to see the government going Sharpeville on their fellow citizens, and will force the government to do the right thing (by stopping them from doing the wrong thing). They are a cry for justice by an oppressed minority, designed so that the disinterested majority will not be able to ignore them.

The other side?

But even if you accept that protests are a necessary instrument for social justice – even in a perfectly functioning democracy – there’s still the other side of the story.

The whole point of protests is to aggravate and inconvenience a majority of people – particularly people with power. In a peaceful, non-violent protest, that aggravation and inconvenience – while frustrating – will never be illegal. Still, people have a right to live their lives without aggravation and inconvenience, right?

Not necessarily. All rights in a society are granted based on reason. (I’m not even going to acknowledge the lame notions of divinely granted rights, or rights simply granted by fiat without justification.) Your rights are balanced with everyone else’s rights. For example, you have a right not to be detained against your will unnecessarily… but that right is not absolute; it is balanced against the rights of everyone else in society, so that if a reasonable case can be made that you’re a danger to society (specifically, a danger to others’ rights), your right to freedom gets thrown out the window, and you’re in the slammer.

A relevant analogy is that your right to freely practice your religion does not give you the right to never hear or see criticisms of your religious beliefs. You do not have a right to not be annoyed or insulted (I hesitate to use the word “offended”, for this kind of case). You have the right to go to church, but you don’t have the “right” to not see a sign mocking your religious icons on the drive there.

Now, clearly, if I were just being a shit, and preventing you from going to work for the hell of it… you would have a right to not have to deal with that. I would be trampling on your freedom to live your life for no good reason. In that case, I could justifiably be arrested (I’m sure there’s a charge for that, somewhere).

But if I were preventing you from going to work when your job is to run a sweatshop… the story changes. Now I have a legitimate reason for trampling on your freedom to live your life – assuming that I have some stake in what you’re doing, for example, that I’m an employee. Because now, my rights and freedoms are being trampled by what you are doing (or not doing, if my beef is that you won’t implement needed safety procedures, for example). So it’s only fair that, because your actions or inactions are denying me justice, that I have the right to disrupt them.

Now consider protests. The point of a protest is that a minority group is facing injustice, and has no other recourse to expediently fix the situation. And the reason they’re facing injustice and can’t get it easily fixed is because the majority – who have the power to fix the injustice – are doing nothing about it. Their inaction is denying the protesters justice, so it is only fair that the protesters have a right to disrupt their attempts at avoidance of the issue.

In other words, the average Québécois does have a right to go about their lives without the kinds of disruption protests cause… but that right is superseded by the rights of the protesters. As an issue of fairness, the balance is obvious: if the protesters are given precedence, the average Québécois is being inconvenienced… but if the average Québécois is given precedence, the protesters are facing injustice. Clearly the protesters’ rights trump the rights of the average Québécois.

You get the same conclusion if you consider the bigger picture. The whole reason protest is necessary in a democratic society is because democracy does not work for minority groups; it leaves them open to injustice without any practical recourse to protect themselves against it or fight it. Take away protest, and all of a sudden, even though you may still have a democracy, you can no longer have a free and equal society. Given the critical importance of protest as an instrument of social justice, and given the fact that the whole reason protest works is that it is aggravating and disruptive, it makes no sense to prevent the aggravation and disruption – to do so would simply eliminate a vital tool of a stable, free society.

Summary

Society requires balancing rights, and each specific case of balancing has to be considered carefully. Sometimes the rights of an individual trump the rights of society, such as the rights of an individual against illegal search versus the rights of the rest of society to security. Sometimes the rights of society trump the rights of an individual, such as the rights of the rest of society to be free from threat of harm versus the rights of an individual to have a machine gun.

In this case the question is whether the rights of people to disrupt and aggravate society with protests trumps the rights of the rest of society to be free from unnecessary disruption and aggravation, or vice versa. My answer is yes, for the following reasons:

• When comparing what will be lost if either sides’ rights are overturned, the rest of society generally loses very little (because they suffer mostly frustration and aggravation), while the protesters will potentially lose the very important right to be free from injustice. (In the event that the rest of society starts losing more than merely being annoyed – for example, if they start losing money – they can always sue the government for dragging their feet in bringing justice to the minority group protesting… or, if they agree that the group’s protest is unwarranted, they can try to sue the protest’s organizers for damages. By contrast, the protesters would have no practical recourse for what they would lose if they can’t protest (which is why they’re protesting in the first place).)
• Given the importance of protest as a tool of social justice, and the high risk associated with protesting (not even considering the potential for abuse and mistreatment by police that seems to be par for the course), the imbalance in power between the protesters and the rest of society requires, for fairness’ sake, that the protesters be given more leeway.
• Also given the importance of protest as a tool for social justice, and the fact that the disruption and aggravation of the general population is vitally important to its function, it would be stupid to prevent the disruption and aggravation. Actually, it would be more than stupid; it would be essentially putting the first nail in the coffin of a free and fair society.

So, what do you think? Agree? Disagree? Share your thoughts about what – if anything – in these arguments is correct, and what is wrong… why it is wrong.