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The China Challenge

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Huhua Cao
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Vivienne Poy

Canada-China: the growing interdependence

Chapter 12. The Canadian Constitution and the Charter of Rights and Freedoms: A Global Template for Minority Rights with Relevance to China?

Errol P. Mendes

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1The rights of minorities are an arena that is becoming perhaps the principal battle ground for human rights in the 21st century. Recent history seems to offer the stunning paradox that federal states may not be the best form of human governance for societies with multiethnic populations. The former Soviet Bloc had nine states, six of which were unitary states, while three were federal in structure. With the unification of Germany, the six unitary states are now five, but the three federal states—Yugoslavia, the Soviet Union and Czechoslovakia—are now twenty-three independent states (see Stepan 1999 and Malesevic 2000). Most of these newly independent states were forged by minorities who did not feel that their rights were sufficiently protected by the federal structures they previously existed within. I suggest that ethnic identities are not predetermined to be in conflict with those of other groups and that the causes of ethnic conflict are influenced not only by history, but also by the ways in which such groups are treated. As one Bosnian Muslim teacher is reported to have said (by Jentleson 2007, p. 19): “We were Yugoslavs, but when we began to be murdered because we are Muslims, things changed. The definition of who we are today has been determined by our killing.”

2At first sight, this does not bode well for federations being particularly good structures for the protection of minority rights. Yet the orthodox thesis is that it is federations, rather than unitary states, that can best protect minorities across diverse populations or across large territories. Perhaps this view is outdated and should be replaced with the thesis that it is only multiethnic societies, whether federations or not, that develop the appropriate constitutional and legal frameworks for the substantive equality rights of their minorities, together with an appropriate method of balancing individual and collective rights, that can hope to remain united and avoid the human rights catastrophes that we see today in so many multiethnic societies.

3More controversially, I suggest that the protection of such minority rights is even more important than instituting the procedural elements of democracy in a multiethnic society, as the tragedy unfolding in Iraq arguably demonstrates. In another tragic example, Sri Lanka, a democratic multiethnic state, has stood accused of violating the human rights and equality rights of its Tamil and other minorities, and found itself in a devastating civil war that has left more than 70,000 dead and with no resolution of the underlying causes of the conflict, even though the Sri Lankan army defeated the rebels in May 2009 and took over all the areas previously held by them (Tiruchelvam 2000, p. 198; it is worth noting that Neelan Tiruchelvam, a friend and colleague, was a moderate Tamil scholar and jurist who was killed by a suicide bomber on July 29, 1999, paying with his life for his belief that constitutional reform in the direction of regional autonomy could resolve Sri Lanka’s ethnic conflict). Similarly, other formally democratic multiethnic states, such as the Russian Federation, are still being condemned in the annual reports of Amnesty International and Human Rights Watch for gross violations of human rights and lack of effective democratic institutions, and are, in practice, refusing to go down the road of an effective constitutional and legal framework that respects the substantive equality of its minorities—with similar disastrous consequences. The future for authoritarian non-democratic multiethnic states is even bleaker. We only have to look at the genocidal carnage in Sudan to understand this horrible future.

Substantive Equality in the Context of Minority Rights

4I suggest that at the core of what substantive equality means for minority groups is the acceptance that treating minorities identically in all respects with the dominant population can lead to a sense of oppression that can fuel civil conflict (for a discussion of equality, and the accommodation of differences between minority groups and majorities, see Kymlicka 1995a, pp. 108–16). Substantive equality, I suggest, would promote treating all groups in a multiethnic society with equal concern and respect, which often requires differential treatment to respect their human dignity, while formal equality would promote identical treatment of all minorities, regions and citizens (for further discussion of this hotly contested view, see Milne 1991, pp. 285–307). Indeed, in some cases equal treatment can often result in discrimination, even for those disadvantaged groups that may not belong to national minorities. For example, it would be rampant discrimination to treat the disabled equally with everyone else as regards access to public transportation.

5Canada could provide a global template, albeit one that is not perfect, of appropriate striving to attain the foundational value of substantive equality for its minorities and indigenous populations within a multiethnic federation. That being said, it must also be accepted that we have been far from perfect in treating our minorities and indigenous populations with substantive equality during the course of our history. Canada is both a very new country, less than 200 years old, and also a very old country, since its first inhabitants, the Aboriginal peoples, have lived here from time immemorial. We have, in comparison to many European nations, a very diverse population. Over one third of Canadians can trace their origins from France and are concentrated in the province of Quebec, where they form a powerful majority. However, more than one million francophones live outside Quebec in minority linguistic communities spread across the country. Increasingly, Canadian society is becoming a mirror of the global society as we welcome immigration from all over the world. In the near future our major cities of Toronto, Montreal and Vancouver will have majority populations that are non-European in origin (see Statistics Canada 2005), creating calls by racial and ethnic minorities for collective rights to non-discrimination and equality. Eventually demands for equality by these groups may lead to a push for representation in elected bodies, as an extension of the principle of federalism that regions should be represented in national institutions (see Kymlicka 1995a, p. 137).

6The Chinese Canadian diaspora has had a long and important history in the development of Canada, including being an indispensable part of the labour force that built the Canadian Pacific Railway and thus set the stage for the creation of the country itself. It is important to regard the Chinese Canadian population as being comprised not only of recent immigrants but also of the many early settlers who helped to establish the country, along with their descendants (see Innis 1971).

The Recognition of Collective Rights in the Canadian Constitution

7The founding document of the Canadian state, the British North America Act 1867 (retitled the Constitution Act from 1982), is replete with provisions related to diversity. However, what is particularly interesting about the evolution of the Canadian constitution is that it contains critical provisions that sometimes allow differential (or “asymmetrical”) treatment and sometimes mandate identical (or “symmetrical”) treatment for national, linguistic and some religious minorities, which allows differences to flourish. Examples include:

  • the guarantee of seventy-five seats for Quebec in the Canadian House of Commons in Section 37, a critical asymmetrical provision;
  • the entrenchment of the provinces’ jurisdiction over property and civil rights in Section 92(13), a critical symmetrical provision that allows differences between the provinces to flourish;
  • the asymmetrical protection of denominational schools in Ontario and Quebec under Section 93; and
  • the official use of English and French in the Canadian and Quebec legislatures under Section 133, another important asymmetrical provision.

8The maintenance of the civil law system in Quebec is another example of asymmetrical federalism entrenched in the constitutional history of the country. The genius of the founding architects of Canadian nationhood was to entrench asymmetry up to the limits of the politically possible, but then to permit differences to flourish under other symmetrical provisions (see Beaudoin 1990).

9Leading US theorists of federalism, such as the late William H. Riker (1975), have argued that it is only symmetrical federalism that is truly compatible with democratic federalism. However, where multiethnic nations have large and historically settled national ethnic, linguistic or religious minorities, an insistence on symmetrical federalism or constitutional frameworks would be a denial of the substantial equality of these minorities. Absolute symmetrical federalism and formal equality can often lead to the assumption of uniformity where it does not exist, and could lead to the coercive institutions of the federal state attempting to impose uniformity and assimilation that national minorities will resist. The result can be disastrous, as we have seen in the case of the former Yugoslavia.

10Asymmetrical constitutional provisions in multiethnic federations are especially important to promote the essential features of cultural self-determination of such minorities in areas such as language, education, culture, religion and, as in the case of Canada, the legal traditions and systems. Effective participation in decision-making at the central level and at the highest levels of political decision-making, which may be asymmetrical to the proportions of the minorities within the federation’s population, is essential to protect against the “nationalizing” tendencies of the dominant population in a multiethnic federation (see Kymlicka, ed., 1995b). This is the chief rationale for providing the guarantee of seventy-five seats to Quebec, regardless of what proportion of the total Canadian population the population of that province may comprise. It also accounts for the fact that three of the judges of the Supreme Court of Canada must be from Quebec, and the tradition of ensuring regional and national minority representation in the governing party’s federal cabinet.

11To reiterate, substantive equality differs from formal equality in that it recognizes that identical treatment can lead to discriminatory treatment of minorities, and impose uniformity and coercive assimilation that would threaten the existence of such minorities (Kymlicka 1995a, pp. 10–130). Democratic multiethnic federal states such as India and Canada (some would add Spain) have learned that asymmetrical federalism has been critical to the survival of their countries (see Stepan 1999, p. 53).

12The dilemma of how to fit minority rights within a constitutional framework that respects both individual and collective rights is being addressed in theory and practice by Canadians within the Canadian constitutional framework. Will Kymlicka argues that “group-specific” rights are compatible with liberal fundamental tenets that uphold the supremacy of individual rights. The fundamental premise of these theorists (and I include myself in this group) is that it is because the rights and liberties of individual citizens include the right to associate that most such rights have a group-related or group-specific dimension. Thus, belonging to a minority based on common cultural, linguistic or religious heritage is an important factor of identity and indeed of human dignity for most members of such minorities. Where individuals thus freely associate, no central or state government or majority, however large, may deny the right of such groups to cultural self-determination within the limits of the supremacy of individual and universal rights, and the rule of law (Kymlicka 1995a, pp. 75–106).

13Some of the collective rights within the growing diversity of Canadian society have been guaranteed in the Canadian Charter of Rights and Freedoms, which was entrenched as Part 1 of the Constitution Act, 1982 (through Schedule B of the Canada Act, 1982 (UK); see Beaudoin and Mendes, ed. 2005). In the Constitution we recognize the collective rights of Aboriginal peoples. Through provisions of the original Constitution and the Charter, and court decisions, we recognize the collective rights of linguistic minorities and, in the case of Quebec, a linguistic majority that wishes to preserve its language within a predominantly English-speaking continent.

14Protection of minorities has been confirmed as one of four foundational principles of Canadian federalism by the Supreme Court in its landmark ruling on the right of Quebec unilaterally to secede from Canada (in Reference re Secession of Quebec [1998] 2 S.C.R. 217). However, the Charter and Canadian society also recognize the equal value of civil and political rights based on the dignity of the individual human being. I suggest that through Section 1 of the Charter a mandate was given by the Parliament of Canada to the judiciary, in particular the Supreme Court of Canada, to work out a legal framework for adjudication between collective and individual rights. Section 1 of the Charter allows governments in Canada to infringe rights if they can demonstrate that such infringements are “reasonable limits prescribed by law,” and “can be demonstrably justified in a free and democratic society.” In the rather complex interpretations of Section 1, it should never be forgotten that one of the most pre-eminent jurists in Canadian history, the late Chief Justice Brian Dickson, focused (in R. v. Oakes [1986] 1 S.C.R. 103) on the final words of Section 1, just quoted, as they formed “the ultimate standard against which a limit on a right or freedom must be shown, despite its effect.” Chief Justice Dickson argued that, because Canada is a free and democratic society, the courts must be guided in interpreting Section 1 by the values inherent in concepts such as

respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

15There can be no better statement of the fundamental values that must underpin multiethnic states if minority rights are to be protected.

What China Could Learn from This Canadian Experience

16While minorities amount to only around nine percent of the total population of China, that figure represents more than 110 million individuals, and their numbers are growing. The territories where most minorities live contain most of China’s natural resources. While official China often talks of the grim struggle with separatist or “splittist” forces, in the long run the strength of China’s territorial integrity will, in my view, in large measure depend on how the government enhances ethnic relations and minority rights. While many in China would argue that the constitutional and legal structures for minority rights in China—with the provisions for limited autonomy and ethnic self-rule, and the proliferation of preferential policies—already do benefit minorities, some experts, both within and outside China, point out three critical weaknesses (see Sautman 1997).

17First, the law and the Constitution of China have yet to provide unquestionable genuine autonomy to minority areas. Such autonomy involves fewer powers than are minimally required to ensure cultural self-determination. Article 4 of the Constitution refers to regional autonomy for minorities living in compact communities who are free to “preserve or reform their own ways and customs.” The Law on Regional Autonomy both sets out and also restricts that autonomy, which must be “under unified state leadership” and under the principle of “democratic centralism,” in other words, under the discipline of the Chinese Communist Party. In addition, under Article 4 all self-governing organs of minorities must implement the laws and policies of the state. Under Article 118 of the Constitution and Article 19 of the Law on Regional Autonomy, laws and regulations made by autonomous areas that govern the exercise of autonomy must be approved by higher bodies. The laws and regulations of the five autonomous regions—Xinjiang, Inner Mongolia, Guangxi, Ningxia and Tibet—must be approved by the Standing Committee of the National People’s Congress (Sautman 1997, pp. 22–23).

18Second, policies and laws are not sufficient to allow for the degree of economic autonomy that would help minority areas to meet the challenge of bridging the gap between the Han majority and the various minorities. There is a large and growing income disparity between minorities and the Han majority population. There is a wealth gap, estimated at twenty to one, between the rapidly developing coastal areas and the minority northwestern provinces, and within the minority areas there is a wage gap between the minority peasants and the majority Han peasants. Some call this an “ethnic psychological imbalance,” which can threaten the unity of the country (Sautman 1997, p. 5).

19Third, there is insufficient protection against the encroachment of cultural self-determination by the Han majority. In particular, minority leaders accepted by the Chinese government as legitimate representatives, such as Adbulahat Abdurixit, Governor of Xinjiang, or Tomur Dawarnat, a Vice-Chair of the National People’s Congress, have argued strenuously against unlimited migration by members of the Han majority into minority areas. These leaders voiced opposition, for example, to the plan to move 100,000 people, mostly from the Han majority, from the site of the Three Gorges Dam to Xinjiang, and accurately predicted that interethnic tensions would result. Such cultural encroachment is also worsened by what some leading Chinese scholars call the affront to the dignity of minority peoples posed by the discriminatory attitudes of the Han majority, and of Han minorities in autonomous areas, which regard many minorities as backward and uncivilized in culture and education (see Sautman 1997, pp. 6 and 15–21).

20In conclusion, both Canada and China have struggled with the evolution of minority rights in their multiethnic societies. In Canada our constitutional, legal and societal evolution has led us to recognize that minority rights constitute a central part of Canadian identity, unity, and competitive advantage in a globalized economy. In China, I suggest, much of the constitutional, legal and societal evolution of minority rights that occurred in the 1980s was premised on a planned economy, where minority rights and preferences were regarded as part of the centrally organized development of the state. Today, with globalization making non-minority areas of China, such as the Special Economic Zones, more autonomous than the autonomous regions, with all the attendant benefits of economic and social development, some have suggested that it may be time to contemplate offering the minority autonomous regions the status of “special cultural zones,” in which there could be sufficient enlarged economic and cultural autonomy for China’s national minorities to feel that their very existence is not threatened (Sautman 1997, p. 39). This could, in time, become not only the solution to the problem of separatist movements, but also a competitive advantage for China in the global economy, as the Canadian model has demonstrated.

Bibliographie

References

Beaudoin, Gérald-A. (1990). La Constitution du Canada: institutions, partage des pouvoirs, droits et libertés. Montreal: Wilson & Lafleur.

Beaudoin, Gérald-A., and Errol Mendes, ed. (2005). The Canadian Charter of Rights and Freedoms. 4th ed. Markham, ON: LexisNexis–Butterworth.

Innis, Harold A. (1971). A History of the Canadian Pacific Railway. Toronto, Buffalo, NY, and London: University of Toronto Press.

Jentleson, B. W. (2007, Winter). “A Responsibility to Protect: The Defining Challenge for the Global Community.” Harvard International Review 28:4.

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Kymlicka, Will, ed. (1995b). The Rights of Minority Cultures. Oxford: Oxford University Press.

Malesevic, Sinisa. (2000). “Ethnicity and Federalism in Communist Yugoslavia and its Sucessor States,” in Autonomy and Ethnicity: Negotiating Competing Claims in Multiethnic States, ed. Yash Ghai. Cambridge: Cambridge University Press.

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Sautman, Barry. (1997, May 9). “Legal Reform and Minority Rights in China.” Hong Kong University of Science and Technology Working Paper in the Social Sciences no. 11.

Statistics Canada. (2005, March 22). “Study: Canada’s Visible Minority Population in 2017.” The Daily. Ottawa: Statistics Canada. Online at http://www.statcan.ca/Daily/English/050322/d050322b.htm [consulted January 14, 2011].

Stepan, Alfred. (1999, October). “Federalism and Democracy: Beyond the U.S. Model.” Journal of Democracy 10:4.

Tiruchelvam, Neelan. (2000). “The Politics of Federalism and Diversity in Sri Lanka,” in Autonomy and Ethnicity: Negotiating Competing Claims in Multiethnic States, ed. Yash Ghai. Cambridge: Cambridge University Press.

Auteur

Lawyer, professor, author and advisor to corporations, governments, civil society groups, and the United Nations. His areas of expertise include corporate law, governance and social responsibility, international business, trade and public law, constitutional law, and human rights law and policy. He has taught in these areas at law schools across Canada and is presently a full Professor of law at the University of Ottawa. He has also been a human rights Tribunal member in Canada, acted as an international arbitrator and an advisor in Canada’s Privy Council Office, and recently served as a Visiting Professional at the International criminal Court in The Hague. While his ethnic roots are from Goa, India, Professor Mendes was born in Kenya, East Africa. He obtained his Bachelor of Law degree from the University of Exeter in the UK, followed by a Master of Laws degree from the University of Illinois. In 1979, he emigrated to Canada and was called to the Bar of Ontario in 1986. Prof. Mendes has been a Project Leader for conflict resolution, governance and justice projects in Asia and Latin America, and has lectured and given media commentaries across Canada and throughout the world. He led a project on human rights in China in partnership with Beijing University, which produced three landmark books he co-edited on human rights that included contributions from leading Chinese and Canadian intellectuals and practitioners. He has authored, co-authored, or edited several other books, including the landmark constitutional law text, The Canadian Charter of Rights and Freedoms, 3rd Edition, Carswell, 1996. He is also Editor-in- Chief of Canada’s leading constitutional law journal, The National Journal of Constitutional Law. In 2006, Prof. Mendes was awarded the Walter S. Tarnopolsky Human Rights Award by the Canadian Section of the International Commission of Jurists and the Canadian Bar Association

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