The special law adopted under gag order by the National Assembly on May 18, 2012, has entailed its share of challenges. Since then, the debate has raged and opinions have become polarized. Some criticize the law as a bludgeon which imposes limits on the freedom of expression and the freedom of association. Others, more resigned, doubt the government’s good faith in resolving the impasse. Amid the tempest, we should not lose sight of certain aspects of the law that raise questions about the rule of law, regardless of one another’s position on the proposed tuition fee increases.
Facilitating legal proceedings
Section 25 of the law alters the rules of the game with respect to class actions, the special procedure that allows an individual to bring legal proceedings on behalf of a group of persons.
Under the Code of Civil Procedure, a person who intends to exercise this remedy first must request authorization from the court. Several criteria have to be satisfied. Notably, all class members must be in a situation that raises common questions of law, and a class action must be the most appropriate means of obtaining redress.
Bill 78 clears away these criteria so as to retain only one of them. The court receiving a request for authorization of a class action may content itself with ascertaining that the representative of the class members is in a position to adequately discharge his or her duties.
Furthermore, the change does not apply to all citizens, but rather is aimed at two groups of persons. First, it applies to teachers who stop teaching classes, who slow down their instructional activities, or who otherwise seek to "deny students their right to receive instruction."
The change is also aimed at any person who seeks to "impede the resumption or maintenance" of classes or to "deny a person access to a place" where classes are taught. A priori, the law appears aimed only at individuals. However, section 22 stipulates that student associations are liable for the damage caused by their members in contravention of the law. Added to that is the fact that, in the event of a class action, there is a strong likelihood that an association, and not a single student, will be sued.
The result of these changes is a relaxation of the requirements in relation to class actions against teachers and student associations. It is therefore difficult to see in this initiative anything other than a desire to judicialize the crisis or, at the very least, to facilitate recourse against the red squares.
Choice in the application of the law
The special law permits the government, at its leisure, to decide when and in what manner to apply the law. To that end, section 9 allows for "specifying certain legislative and regulatory provisions as not applicable" to ensure the continuity of instructional services. In other words, the government is authorized to interfere in the management of educational institutions and to issue its own directives.
The government is further authorized to override its own special law as it sees fit. It arrogates to itself the right of "prescribing any other necessary modification to this Act."
The myth of the right to education
Since its adoption, the government has continued to portray its special law as a protection of the right to education, in the sense that it guarantees that all students wishing to return to class may do so. However, this construction of the right to education is grossly erroneous.
Sections 13 and 14, respectively, aim to prevent any cessation of classes and to prohibit any picketing in front of institutions of postsecondary instruction. Thus, the right to education defended by the government is presented as a right of physical access to the place where classes are taught. But it is nothing of the sort.
The concept of the right to education is a right of an "economic, social and cultural" type. It is addressed in article 40 of the Charter of Human Rights and Freedoms. This provides that: "Every person has a right, to the extent and according to the standards provided for by law, to free public education." Under this provision, education must therefore be made generally available, and this, by the introduction of free education. In Quebec, this article is incarnated in free primary and secondary education.
The right to education is also enshrined in article 13 of the International Covenant on Economic, Social and Cultural Rights. Besides the introduction of free primary and secondary education, this provides that: "Higher education shall be made equally accessible to all […] in particular by the progressive introduction of free education."
Fees as disincentives
With regard to the progressive introduction of free education, the United Nations body charged with monitoring implementation of the international covenant has declared the expression to mean that states must "take concrete steps towards achieving free secondary and higher education."
Even more interesting, the same committee has stated the following with respect to the right to education: "Fees imposed by the government […] constitute disincentives to the enjoyment of the right and may jeopardize its realization. They are also often highly regressive in effect."
It goes without saying that this reading of the right to education is a far cry from simple physical access to an institution of learning and is aimed instead at guaranteeing that a student’s socio-economic background does not undermine his or her ability to gain access to education. The Liberal government is thus trying to present itself as the defender of a right which, however, it itself is denying through its announced tuition hike of $1,778 spread over seven years.
In this context, the special law does not appear to be a measure that genuinely protects the right to education, but instead as one that cuts short mobilizations. By using this law to justify exceptional measures, the government has reshuffled the deck.
It is presenting a distorted version of it in order to better serve its political interests. Not only is the special law far afield from the real substance of the right to education, but it is being used to restrain those whose claims are based on the true essence of this collective right.