Interventions in Committee
 
 
 
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Michael Pal
View Michael Pal Profile
Michael Pal
2015-05-26 12:17
Thank you very much to the committee for having me here to speak on this important bill. I'm a law professor at the University of Ottawa where I teach constitutional law and election law. You're all invited to come and speak to my class, if you'd like, down the road.
I'm going to give you a very different perspective than Professor Lee. You would have thought the law professor would be the one quoting Hobbes and Foucault, but instead I'm going to speak to the constitutionality of Bill C-50, particularly the rules on registration and on voter identification for overseas voters.
In my opinion, and I wish it was otherwise, the bill as currently written is unconstitutional for violating section 3, which is of course the guarantee of the right to vote in the Charter of Rights and Freedoms. It's unconstitutional because it substantially burdens the rights of all citizens, no matter where they live, all Canadian citizens, to be able to cast a ballot.
I would also add that I don't believe Bill C-50 is actually in the spirit of the Frank decision. Frank, of course, struck down the rule preventing those overseas for five years or more from voting, so it actually expanded voting rights.
My fear with Bill C-50 is that the House may inadvertently be doing indirectly what the courts have said it cannot do directly. The House of Commons cannot deprive people, ban them from voting. But if the rules are so onerous as to make it nearly impossible to be able to cast a ballot, then the effect is the same.
The relevant sections here for overseas voters, in particular, that raise a constitutional dimension are those that require individuals to register at each election and only once the writ has been dropped, and then the voter ID requirements from the Fair Elections Act being applied here.
Requiring registration only after the writ is dropped is a recipe for denying the right to vote to Canadian citizens. The timelines are extremely tight and I know there has been some discussion at the committee about Canada Post and how long it takes to go back and forth. Once you factor in applying to register, the approval by Elections Canada, and then sending your ballot in, it can become very difficult to get it in on time. It's not impossible, but we shouldn't have to be lucky to be able to exercise our constitutionally guaranteed right to vote. I fear that is what this bill would do.
I would just draw the committee's attention to the recent British election, which also had extensive postal balloting of hundreds of thousands of people, and an article from The Guardian. It said that 113,000 people applied to vote by post, and overseas voters raised concerns they did not receive their ballots in time. We often look to the United Kingdom as a shining example of democracy and here even through best efforts postal voting can be deeply problematic.
Second, to turn to the ID requirements, the driver's licence is, of course, the document that has both your identification and your residence on it. Of those who live overseas, however, or in the United States but are Canadian citizens, very few will actually have an incentive to keep their driver's licence or documents that prove their identification and residence.
I know the committee has had a discussion in Bill C-23 about ID requirements, so all I would add is that for overseas voters, however onerous the ID requirements are for Canadians living in Canada, for Canadians living abroad they're likely to be even more onerous. Why would you keep all those pieces of ID that you might potentially need in order to vote because you probably don't need them for any other reason?
To turn to the constitutionality explicitly, the courts have consistently expanded the right to vote since we've had the charter. The Sauvé decision granted prisoners the right to vote. Cases have also granted the mentally ill the right to vote. Frank, from the Ontario Superior Court—and we'll see what the court of appeal has to say and then potentially the Supreme Court—was absolutely in that tradition. If one is a citizen, any restriction on the right to vote has to be very clearly justified by the government.
The question here is: what is the justification? I believe, as Professor Pilon said, we don't have good evidence of widespread fraud that would lead us to say we should limit the right to vote of those who are non-residents. I would ask the committee to weigh the very direct and concrete harm that's likely to result for Canadians living outside of the country, making it very difficult for them to vote, versus the relatively abstract goal of trying to prevent fraud.
We all agree preventing fraud and electoral integrity are important, but without evidence that this fraud is actually occurring we are potentially creating a real harm through Bill C-50.
To conclude, I would say the timing of registration is something that could easily be fixed. I know Mr. Kingsley said 30 days. Why not a year or perhaps even longer? You could register at any time potentially in between elections and I think that would be administratively possible.
If attestation as to residence is still going to be required, we should perhaps look at why the person who is attesting for you has to have lived in the same riding as you, because that is potentially artificial restriction that may not mean much on the ground and might restrict the right to vote.
Thank you very much for your time. I look forward to your questions.
View David Christopherson Profile
NDP (ON)
Not often enough in my view.
Some hon. members: Oh, oh!
Mr. David Christopherson: It's a great word politically. A lot of moms don't like it though, so I try to be careful. There were buttons that came out not long ago that said keep your stupid tax cut. People didn't like the word stupid.
The whole idea that you could not even apply to vote until the writ is dropped is simply absurd. I would ask Professor Pal if there is anything he can think of that would, from a reasonable, legal.... Forget the rhetoric that I've been giving you, set all that aside. Is there a really good reason why anyone should have to wait until the writ is dropped to apply to be able to exercise their constitutional right?
Michael Pal
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Michael Pal
2015-05-26 12:35
I will leave it to the honourable members to discuss motive and the political side.
I don't think there is a reason to make people wait until the election period. You asked at the beginning of your question whether the system was broken. I don't believe it was.
The two problems were that some people's ballots were coming in too late. I think Mr. Kingsley said that was about 1,000. I don't know the exact number, but that was an issue. Sometimes Elections Canada would send ballots to the wrong address, because they sent it to the address they had on file and someone had subsequently moved to a different address overseas. I don't see how this bill addresses that while also making voting accessible for people who are overseas.
I don't believe the system was broken. It could have been tweaked in some small ways. Absolutely, we should always try to improve the democratic process with the idea of making it as accessible as possible. Why not allow people to register whenever they can and whenever they want? People lead busy lives. We have a crisis of democracy in this country, I think. Not enough people are voting or engaged. Why not try to facilitate the engagement of people, rather than making it more difficult?
View Scott Simms Profile
Lib. (NL)
I appreciate that. I deal with it every day.
The unsubstantiated, undocumented allegation that significant numbers of Canadians possess no identity cards appears to be a legend. But you also say that, digitally, we are not invisible. That's where we agree.
Here's where our opinions may diverge. You are not invisible to the government when it wants to find you.
Dr. Ian Lee: That's right.
Mr. Scott Simms: But, sir, this is an election and when the vote is called, the government doesn't come looking for you. You have to go to the ballot box.
Dr. Ian Lee: Right.
Mr. Scott Simms: There are so many pieces of ID that may be available to people, such as seniors IDs, such as attestations, such as all of this, that it becomes difficult in a short timeframe. We may think five weeks is not a short timeframe, but for people who are not engaged in politics, it's short and it's hard for them to do.
My question is this. One of the things government has done is eliminate the use of the voter information card. It's one of the few federal IDs. Do you not think, in light of this, that would go a long way?
Ian Lee
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Ian Lee
2015-05-26 12:40
I have thought about that. I've voted in every federal election since I turned 18. I voted first, I think, in the 1972 or 1974 election. I was always struck, way before this arose, with how loosey-goosey it was, if I could use slang English. They come to the door. “Are you a citizen?” “Yup.” “Do you live here?” “Yup.” “Put your name down; you're a voter.”
They ask for no ID whatsoever, zero identification.
I think of all the other areas of society. I proctor my own exams, as every professor does, I think, or most professors do. We have to proctor our own exams now because we don't get enough money from our provincial governments to hire proctors. We require—and I went and looked at four universities other than my own—you to bring your photo ID into the exam, because I, at least, cannot remember all the names of all the people in my course. I only have 45 in a fourth-year course. So we require photo ID. That's just to write an exam in a university.
I fly to Europe and China all the time, because I teach in both Europe and China. Every country I go to requires a passport. When people say it's very difficult to go abroad without identification.... If you're abroad as a Canadian, you have a passport and there's an address on it on page 4.
View Ève Péclet Profile
NDP (QC)
Thank you, Mr. Chair.
Thank you, Minister.
My first question is about Bill C-23, which was passed and which transfers the Elections Canada Office of the Commissioner of Canada Elections, responsible for investigations and the management of federal elections, to the office of the Director of Public Prosecutions. However, I believe that the 2015-2016 main estimates do not contain any funds or increases specifically for the management of the Office of the Commissioner of Canada Elections.
I would like to know if a budget is planned for the administration of the office of the Director of Public Prosecutions and if so, what that amount is. I do not know what type of budget he had before, but I would like to know if that has been drastically reduced.
View Jim Hillyer Profile
CPC (AB)
View Jim Hillyer Profile
2015-05-07 13:55
You talked about some of the reasons that the current president was elected. How much choice did they have in electing whomever?
Maziar Bahari
View Maziar Bahari Profile
Maziar Bahari
2015-05-07 13:56
There were six or seven candidates. People could choose any of them.
Maziar Bahari
View Maziar Bahari Profile
Maziar Bahari
2015-05-07 13:56
No. That's what I'm saying. He was the best of the bad choices. They had to go through the filter of the Council of Guardians. Of course, many people were rejected, including former presidents. Only these people were available to the people. People were wise enough to vote for the candidate who was least liked by the supreme leader of Iran.
I think what we have to understand about the 2013 election is the fact that Rouhani was elected as the legacy of the 2009 election, and that people came to the streets in millions and protested against the rigging of the election in 2009. The regime did not want a repeat of the same thing and allowed people to vote for the person they elected.
Alan Ka-lun Lung
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Alan Ka-lun Lung
2015-05-07 11:37
Thank you for inviting the Hong Kong Democratic Foundation.
I'm a graduate of Wilfrid Laurier University in Canada, so I am particularly pleased to update the standing committee on the latest situation in Hong Kong.
The first point is on the current situation. There's really no good news to report. The proposed 2017 election reform is widely expected to fail. The bill is unlikely to get the two-thirds majority needed. It's really unfortunate that Hong Kong and Beijing cannot come to an agreement. It is unclear, if this proposal is rejected, how long we will have to wait before further reform for universal suffrage can be restarted under the basic law.
This disagreement is not good for Hong Kong. The consequences are that the political uncertainty that has been troubling Hong Kong for more than 30 years will remain unresolved, Occupy Central or street protest in one form or another will continue, and business confidence in Hong Kong will drop. This is not a good outcome for Hong Kong, for China, or for international interests, particularly business interests, in Hong Kong, and the worst case scenario could even be a script for the beginning of the end of Hong Kong.
What the pan-democrats want is fairly simple, straightforward, and easy to explain to a Western mind. They want genuine universal suffrage with no unreasonable restrictions on the nomination and election process, with a particular focus on no unreasonable screening on the nomination. What's being offered with this bill that has been tabled by the government falls short of this expectation. The government's proposal is a big step forward on the election process—one man, one vote—but a big step backward on the nomination process.
There'll be no TV debate for the pan-democrats this time. They wouldn't be nominated under the current proposal. It is widely expected that, once the bill is passed, there will be little room for reform in the future.
The pan-democrats, however, were not very good at communicating their objection. The advocacy of a total rejection of the 8.31, August 31, decision of the Standing Committee of the NPC is perceived as venomous attack and a rejection of China's sovereignty over Hong Kong—this is the perception coming from Beijing. The pan-democrats also made the mistake of not taking the “national security” of Beijing into consideration in their counter-argument.
From my assessment, what the central government in Beijing wants is that they genuinely—but in an ambiguous way—want the chief executive election proposal to pass. But, as the previous speakers mentioned, they will not give up national security concern as framed by the 8.31 NPC SC decision.
From the experience of the 2012 election by an election committee that will become the nomination committee, conservative forces in Beijing also felt that the chief executive candidates, once nominated, could not be controlled, not even in 2012, by Beijing. So the current one person, one vote proposal, which is sort of promoted as universal suffrage, is indeed a big step forward already and ought to be welcomed by people like me with open arms. Such thinking leads to a conclusion that allowing approved candidates to run in a "universal suffrage" election, almost like the Iranian presidential election system, is the maximum risk that the central government seems to be willing to take for now.
As for the strategy used by the pro-establishment camp to get the bill passed, the pro-establishment camp is prepared to influence or even twist public opinion to pocket the proposal. This is the so-called “pocket it first” strategy. The current strategy is to try to steal four or five votes to get it passed in the current form.
Trying to twist public opinion in this way is really an impossible task. The free press in Hong Kong is already publishing public opinion polls that are more intellectually honest.
In private meetings with foreign consul staff, senior constitutional reform officials in Hong Kong also expressed pessimism about getting the bill passed.
If the bill is passed in its current form by a margin of one vote, the result is not going to be any better. Hong Kong will still be in a very bad mood in July. Approximately 40% of the population, particularly the younger generation, will still feel disenfranchised and betrayed. This is why Occupy Central will keep coming back in one form or another.
As for the influence of the Canadian government, unfortunately, the Canadian government can't really help us because any open criticism of the Chinese government will be regarded as bad foreign influence and meddling in the internal affairs of China. Such meddling could even trigger tighter restrictions on the chief executive election nomination process.
At this moment, the only answer is for Hong Kong to come to an agreement with Beijing on its own about building a wide community consensus on a proposal that allows as close to universal suffrage as possible under the 8.31 NPC-SC decision, such as a joint nomination by the nomination committee and the Legislative Council. It makes it 50% approval of the entire list, but such a proposal is not considered by either side.
There is an optimistic note after painting a gloomy picture. I was told by a Canadian once posted in Hong Kong that the Canadian embassy in Beijing sometimes helps the Chinese government interpret what the Americans say to them. I suppose this is happening because the Chinese government finds it useful to get help to interpret the subtle language or cultural difference between the American and the Chinese. I imagine these things happen behind closed doors, and what was said would never be disclosed to the South China Morning Post.
A senior U.S. diplomat who once spoke at the Hong Kong Democratic Foundation—I think Dalena knows this person well—said to us that if Mikhail Gorbachev had a little piece of Hong Kong, the reform and opening of the Soviet Union could have been more successful.
On the situation in Hong Kong, it is still possible—we don't know yet, because nothing is happening yet—that Beijing may be willing to take a little bit more risk and turn the current “one person, one vote” proposal into genuine universal suffrage that conforms to the 8.31 NPC-SC decision. The outcome would be very different for Hong Kong in July, and for China's reform and opening journey just a little bit down the road.
Thank you.
Simon Young
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Simon Young
2015-05-07 11:46
Thank you, Chairman and honourable members.
Let me begin by saying it's a real honour to be giving evidence today.
A quick word about my background. I'm sure many of you have already detected the North American accent. I'm sure some of the more perceptive of you will have detected the southwestern Ontario accent. So yes, I was raised, not born, in Canada. I went to law school there and qualified. My first job was with the Ministry of the Attorney General in the Crown Law Office-Criminal.
I came back to Hong Kong in 2001 and have been an academic at the university for the past 14 years. Although I teach criminal law in evidence, I do most of my research in Hong Kong—the legal system and the political system. I co-authored a book entitled Electing Hong Kong's Chief Executive.
In these next few minutes I want to focus on and talk about the political reform issue in the proper constitutional context. I think that's very important to appreciate because there are very significant differences from other constitutional regimes—Canada's or others'. I think it's very easy to make certain assumptions about our constitutional regime that may be wrong. So I want to try to highlight what those first principles are in our constitutional regime.
As Ms. Wright has mentioned already, the history of democracy in Hong Kong has been very slow and late, but I wanted to focus this time on the executive leader. Because, of course, before 1997 the executive leader was the governor and there was never any opportunity for Hong Kong people to have any kind of input on the selection of the governor. The governor was chosen by the Queen on the recommendation of her ministers, and, hence, when we come to 1997—the 1984 joint declaration and 1990 Basic Law—you see a major change in this respect because for the first time the idea that the Hong Kong people would have some say in the selection of the chief executive became a reality.
Now, it's important to look at the words of the joint declaration. It doesn't refer to universal suffrage, it does refer to the power of the central government to appoint the chief executive of Hong Kong on the basis of either elections or consultations done locally. Then when it talks about the legislature, it talks about it being constituted by elections, and that's it. It doesn't say anything else about what form or shape those elections will take.
Then we come to the Basic Law, which is our constitutional instrument, so that's six years after the joint declaration. It has 160 articles; it's a fairly long document. It implements the joint declaration and does many other things as well in fleshing out the details. Now, here is where we find the first references to universal suffrage, and in this case we're talking about article 45 for the chief executive.
The most important thing to keep in mind is the idea that however Hong Kong selects the chief executive, it's ultimately for the central government to appoint, and the central government has repeatedly said that's a substantive power, that it's not just a rubber stamp. That is a fundamental feature of our constitutional regime. It's not like Canada where people in provinces vote and elect a premier, and there's no confirmation that has to come from the federal government. Here, there is such a confirmation process.
You have to get the central government to appoint that person who has been selected through elections. I think that is a very important reality we're dealing with, because this is how Beijing looks at it: what if you select someone that we don't approve of or we don't trust? There's going to be a problem, so they're not going to appoint that person. Do it again.
That can't just go on forever. It creates instability, and if you look at the terms of the Basic Law, it promises stability, right? That's very important to the Chinese government. Frankly, it's important to anyone. Hence, that's how they are looking at the situation: “We want someone that you elect that we don't have to turn away. How can we ensure that?” So they focus their attention on the nomination process.
Before I come to the current debate, let's just look at the history of the selection of the chief executive. The Basic Law provides for a system of electing the chief executive through a committee. First it was known as a selection committee, consisting of 400 people. That was the committee that put in place the first chief executive. There was a mini-election amongst those 400 people. It's the so-called small circle election that's often criticized about our system.
That committee grew to 800 people next time around in 2002, but there was no election because no one ran against Mr. C.H. Tung. Again it highlighted the problems of that system, but there was a committee made up of 800 people that had a base of maybe about 200,000, so for the first time you had some public involvement in the choice of that person.
Then there was an opportunity to reform that and to make the committee bigger in 2005, but to do that you had to amend the Basic Law. The amendment formula involves a three-step process. You have to get two-thirds of the legislators, consent of the chief executive, and finally the approval of the central government.
In 2005 when the democrats were given a proposal to try to make that committee a bit bigger, a little bit more “democratic”, the democrats rejected it because they had that veto. That was their first sort of attempt to try to amend the Basic Law.
What was surprising was that people thought that was the end of democracy. What was surprising was that in December 2007 it was Beijing pretty much on their own, but probably with some impetus from the then chief executive Donald Tsang, Beijing in a decision said that they could have democracy of the chief executive in 2017. They also said that they had to do that first before the legislature was going to be democratic.
That takes us then to 2007, the first time we had an election. Then 2012 was when we had the second election. Before 2012 there was another opportunity to amend the Basic Law. Of course, circumstances were different because we now know that in 2017 we may have universal suffrage, so democrats were a bit more willing to compromise. Hence, the election committee was expanded to 1,200.
That takes us to now, because the August 31st decision is a decision that sets down three restrictions. It speaks to Beijing's aim to ensure that whoever ultimately is selected is someone who's not going to confront Beijing. They feel the way to do that is to have very a controlled process over nominations. That's where we come into the fundamental problems we see with society and society's expectation to have a much more democratic system, one that adheres to the International Covenant on Civil and Political Rights which, of course, has been implemented in Hong Kong through our bill of rights, and at the same time perhaps not fully understanding the dynamics of what Beijing feels is important when it comes to governance.
That's where we're at. Occupy Central happened and now we're at this, as I think Alan has already explained very clearly, very tragic situation. Both sides are not even talking, not even trying to explore ways in which you can have a more democratic system within the August 31 framework. I'm one of the scholars who have tried many times to propose different ways of maybe having a better balanced system that, on this first attempt, would certainly be an improvement to our existing system and would allow us to move forward. But unfortunately it doesn't look like the two sides have sufficient trust to achieve any kind of progress. That I think is quite unfortunate.
I'll just stop here.
Yves Tiberghien
View Yves Tiberghien Profile
Yves Tiberghien
2015-05-07 12:09
That's a great question.
I'm an optimist on this because already I've seen good quality dialogues happen at UBC, for example. We have students from both, Hong Kong and the mainland, and we have all kinds of diasporas, alumni, and all this. Clearly what Simon and Alan described is that there is even room within the 8.31 agreement. I think everyone here will agree that it's not realistic to expect the NPC to withdraw the 8.31 ruling until at least, I would say, the next party congress in fall 2017, in part because it would put Xi Jinping in a very, very hard position within the party in all this. After 2018, there is maybe hope for a nudge process, but for now that's the constraint. Clearly, there is room, as especially Simon's work has shown, for pushing the boundary of that 8.31 agreement. There's a lack of trust. There is a gap. The two sides in Hong Kong are not getting there.
Yes, I'm an optimist on this. Holding some public forums or nudging local partners and others in Hong Kong, anything that could incubate.... It looks like a place for mediation in the absolute term; then we have to do it the right way. But there must be a better way, as mentioned by Simon, for pushing the boundary.
The other aspect of it, which is something that's in the cart on the Chinese side and the Hong Kong government's side, would be to be very lenient in implementing or running that selection committee. But, of course, on the democrats' side, there's no way to take that as a credible commitment. How can you trust that they will actually...? On the actual selection of the members, yes, there will be 38 constituencies and all that. There is still room for nudging that to make it much more representative, closer to the public. There is room to nudge it, but I think the democrats cannot trust the government to do it. But that's still within the framework as well. Anything that could lead to quality dialogue, to lower a bit the temperature, and really explore all the possibilities to at least make it more comfortable for the 40% of the public and the democrats to support, or to find a way to change that bill and make it supportable....
The alternative, by the way, if we go as we are now, with two trains facing each other, and the bill fails, then in 2017 we would run the old system, which will probably lead to protests in the street and a lot of instability. But China will not budge either. So this is what we're looking at. I still think if we could nudge it a bit, the 2017 package, no matter what—having the one one-man, one-woman vote, having the election actually happen, even if there are only two or three candidates who go through the gauntlet—it would still have a massive impact, a spillover effect, I will call it. It's like when the French did privatization way back when. They did it partially initially, keeping control, right? But even partial privatization changed everything because it brought a whole momentum behind it. So I think that moving with an actual election would still have an enormous positive impact, but it's a matter of finding a way to make it more acceptable.
View Marc Garneau Profile
Lib. (QC)
Thank you very much.
Thank you to all the witnesses. You're certainly filling gaps in my knowledge.
I only have seven minutes, so I'm going to be fairly quick. I will hope you can be succinct in your remarks, and please don't consider me rude if I interrupt you.
My first question would be to Mr. Young. Has there ever been the notion floated of a compromise approach to this, such that Beijing would provide some nominees and Hong Kong could have its own nominees? Has that ever been put on the table, or is that out of the question?
Simon Young
View Simon Young Profile
Simon Young
2015-05-07 12:13
If any compromise occurs, it has to be within the structure of the nominating committee. In fact, what just came out in April is quite interesting. I don't think people fully grasp the implications of it, because although the composition of this nominating committee is the same as that of the old election committee, the rules of voting are a bit different. It used to be the case that the nominating committee members could only choose one person, whether for nomination or election. This time around you have a low threshold to get people into the race, a 10% threshold—you get 10% votes from the committee. You may have up to five or ten people who then go up before the committee for the vote, to get to 50%.
That's what's interesting. In getting that 50%, for the first time the committee members can actually vote for more than one person, and that's never happened before. I think it's sometimes known as approval voting. What's interesting about it, and the way I've described it in an article, is that you have three types of voters in the nominating committee: those who vote for only pro-establishment people; those who vote for only the pan-democrats; and then those who are prepared to vote for both, maybe with the hope of having a more competitive election.
How big that chunk in the middle is we don't know. We know that those who only vote for the pan-dems may be about 16%. There might be enough there in 34% for a pan-dem to be nominated. There are many unknown questions there.
I think the best thing would be to just try the system, because ultimately it comes back to the question of the composition of that committee. Unfortunately, right now the government is not prepared to change it, but maybe the next time around it could be more liberalized. Maybe it could involve some directly elected members.
So there's lots of room for discussion.
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