charter

Rights are mainly a matter of declarations. They are, in short, the product of a speech act. Undeclared rights are not rights at all. Hence the history of human rights is also a history of their repeated enunciation and articulation, from the Magna Carta on. But a declaration also implies an audience, and a process of interpretation. Hence, alongside this history of speech acts is a parallel (parasitical?) history of interpretation and commentary. Often the modus operandi of that commentary is the laborious process by which an event is reconstituted and reimagined: What exactly did the framers mean?

And if a declaration is an event, an irruption onto the scene of political discourse (dated: 1789, 1948...), then usually interpretation is the province of an institution (a Supreme Court or similar), whose judgments may or may not come to be seen as events and so new declarations, that have in turn to be interpreted in subsequent institutional deliberations. Such is the temporality of rights discourse: the violent irruption of the event is followed by the (quite literally) stately progress of deliberation and interpretation.

But some events are less eventful than others. The "Canadian Charter of Rights and Freedoms" is, frankly, a bit of a damp squib. It comes late to the scene of rights declarations (which were piling up thick and fast by the middle of the twentieth century). Belatedness is not itself a curse: the more recent a declaration, the more likely it is to declare a new right, and thus to up the ante of the game of eventful articulation. The Canadian Charter, however, manages to be both almost entirely derivative and singularly Canadian at the same time.

The derivativeness is in the first instance linguistic. And I don't merely mean the phrases (e.g. "the right not to be subjected to any cruel and unusual treatment or punishment") clearly lifted from other, similar documents. More to the point, and despite being described as a document that articulates the values around which the Canadian people can unify, the Charter's language is distinctly uninspiring.

It doesn't help that the document's very first clause is the famous "Limitations" clause that states that the rights that follow are "subject [. . .] to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This may seem like an eminently sensible and pragmatic reminder that rights are mutually limiting: the right to free speech, for instance, is limited by the right to non-discrimination; hence bans on hate speech. But it sure takes the wind out of the Charter's rhetorical sails.

Imagine the crowds that surged on Parliament Hill, urged on by the slogan "Fight for your Rights! Subject only to Such Reasonable Limits Prescribed by Law as Can Be Demonstrably Justified..." Actually, you can almost imagine an Ottawa crowd moved by such a slogan. Hence the distinctively Canadian tone of the Charter: so very sensible and self-limiting. Quite unlike the US Bill of Rights, for instance. And the Canadians not only begin with a "Limitations" clause; they also end with a "Notwithstanding" clause, which basically means that the Parliament or a provincial legislature can suspend almost any of the Charter's provisions for (a renewable) five years.

In short, if every rights regime comes into being and operates between the twin pressures and temporalities of an insurgent event on the one hand, and that event's institutional interpretation and assimilation on the other, it's very clear to which of the two Canada's Charter leans: it's a tool of state management much more than it is the result of popular struggle. Its time is not that of revolution (still, by contrast, hard-wired into the US Bill of Rights or the French Declaration of the Rights of the Citizen) but of pacification.

And so no wonder that Harry Arthurs and Brent Arnold can conclude that the Charter is essentially useless:

Progress towards the vision of Canada inscribed in the Charter has generally been modest, halting, non-existent, and, in some cases, negative. What we claim is that the Charter does not much matter in the precise sense that it has not – for whatever reason – significantly altered the reality of life in Canada.

[. . .]

Canada’s political culture today is less vibrant, less democratic, than it was a generation ago.

[. . .]

The plight of Aboriginal peoples has not been much ameliorated, if at all. The project of multiculturalism, which is mentioned but not given prominence in the Charter, has seemingly gone off the boil. Immigrants – despite new guarantees of their legal and equality rights – seem to be having a tougher time integrating into society and the economy. ("Does the Charter Matter?" [Review of Constitutional Studies 11.1 (2005)]: 38, 111-112)

And why exactly has it had so little impact, or has what impact it has had been mostly negative? Essentially because it substitutes fictive abstract equality for real material differences. This, after all, is the fundamental move of all rights discourse, from the founding conceit of moving from natural to civil rights. Again, as Arthurs and Arnold put it:

If one were to establish a gradient that descends from the most affluent to the least affluent members of society, one would find at each point on that gradient not only lower living standards, but lower levels of educational attainment, health, personal safety and security, civic participation, political influence, and respect from police and other state officials. Moreover, as one descended the gradient, one would almost certainly encounter members of Charter-protected groups in ever-increasing numbers. [. . .] The best prospects for greater progress towards the equality values of the Charter would therefore be to redistribute wealth.

[. . .]

Of course, the Charter was not designed to transform Canada’s political economy. On the contrary, when it was adopted, its architects took considerable care neither to protect property nor to redistribute wealth. (113-114)

But is this not what all rights declarations do? It's not merely that the Canadian Charter happens to be one of the least interesting and least effective instances of such rights discourse. It also demonstrates to us something shared by all such discourse. For it always ultimately is a matter of replacing popular struggle with bureaucratic institutions.

riot!

Last night in Vancouver a small group of young men, watched and urged on by a large crowd, indulged in a frenzy of violence. And then afterwards there was a riot.

Hockey has a very ambivalent--and increasingly anguished--relationship to violence. This is a sport in which fights are permitted if not condoned, and which is only now debating whether or not to outlaw "hits" (that is, shoulder charges at speed) to the head of opposing players. This is a sport in which roughing up the opposition is an integral part of the play and major injuries are common: the league's best player has been out for most of the year with a concussion. In the season's penultimate game, one of the Vancouver Canucks had his back broken when he was rammed into the boards that line the ice long after the play had moved on; the player who hit him didn't even get a penalty. Every such incident provokes prolonged discussion of the finer points of the game's ever more complex rules governing which types of violence are acceptable (and when), and which are not. There is no real thought, however, of eliminating the violence altogether, as it is acknowledged that it is a large part of the game's popular appeal.

This Stanley Cup finals series between Vancouver and Boston was particularly nasty, with a lot of bad blood between the two sets of players. Boston were the more physical team, and tried to impose their style of play on Vancouver, who were drawn into replying in kind. There were big, violent hits on both sides, as well as endless hacks, slashes, and punches. Much of this went unpunished thanks to some rather inconsistent refereeing.

And then there was a riot. But by contrast with the discussion prompted by the on-ice fighting, the commentary on the post-game violence has been singularly un-nuanced. The people downtown have been uniformly condemned as "idiots." One Facebook status update I saw urged on the Vancouver Police Department and the Royal Canadian Mounted Police: "Go VPD Go!!! Go RCMP Go!!!" Another was scarier still in its unabashed call for an authoritarian crackdown: "How about a total media blackout and we let the police REALLY do what should be done?" Who are the thugs here? Who are the ones calling for more force, more violence?



The post-game violence was just about as predictable as the violence during the game itself. The last time the Vancouver Canucks had been in this situation--in 1994, when they had likewise lost a Game Seven of the Stanley Cup finals--also led to destruction and looting. This West Coast city is pretty laid back about most things, but when it comes to hockey apparently we like to riot. There had been much talk in the media and elsewhere about the possibility of a repetition of the events of 1994. Indeed, the riot had been talked up almost as much as the game itself. In the interval, however, the success of the Winter Olympics last year seemed to suggest that Vancouver could now deal with large and exuberant crowds in the downtown core. In the event, however, none of the lessons of the Olympics were learned. In fact, overshadowed by folk memories of 1994, it almost seemed as though the police wanted a riot; as far as I could see, at least, they were doing their best to provoke one.

I watched the game with some friends in an inner city suburb, the West End. As it happens, they live very close to what had been the epicenter of the 1994 disturbances. But as I went out, half an hour or so after the hockey had finished, there was no sign of any trouble. Some people were milling around, but the streets were pretty empty. No doubt many had gone home early, both disappointed in the score and worried about the much-hyped prospect of violence. Though there had reportedly been up to 100,000 people downtown to watch the game, very soon afterwards there were far fewer people out and about. The crowd was certainly nothing like the size it was after the Olympic gold medal hockey game last year, when at times it was impossible to move down some of the city's main thoroughfares because of the sheer numbers of bodies blocking the way.

I made my way further downtown: things were quiet and calm everywhere until a block or so away from what might be the heart of the city, the intersection of Georgia and Granville, where a fairly raucous crowd was gathered outside the Vancouver outlet of that Canadian icon, the Hudson Bay department store. Even here, however, the streets were never too busy to traverse. I could easily have kept on walking; at no point were pedestrians at risk. Around me were a wide and representative selection of the city's inhabitants: young couples; women dressed to the nines with high heels accessorizing their fitted Canucks jerseys; businessmen in suits; old as well as young; many South and East Asians, reflecting Vancouver's racial mix. Apart from the very old and the very young, it was a pretty representative cross-section of the community. Perhaps surprisingly, there was not much obvious public drunkenness. There was a sense of expectation and some anxiety, a recognition that circumstances might change, but in general people were relaxed: at a loose end, hanging around, waiting to see what might happen. An occasional cheer would go up, and there was some commotion right next to the plate-glass windows of the Bay, but in general at this stage it was quite safe to be out and about.

There were no police to be seen. This was quite different from the Olympics, when the police had been everywhere, interacting with the fans. My understanding had been that here, too, the strategy was to be "part of the crowd." But, if it had ever been implemented, by this point that strategy had clearly been abandoned.

The first indication I got of a police presence was when people started running past where I was standing on the corner of Georgia and Granville, coming from the direction of the stadium, and I caught the whiff of tear gas. The panic soon stopped and the crowd stabilized again, but it seemed that if they were doing anything the police were merely provoking these blind flurries from somewhere on the Eastern perimeter. Meanwhile, across the street at the Bay, there were periodic attempts to smash the window. But this was a slow, episodic process--it appeared that there were security guards within the building who managed mostly to keep would-be looters at a distance. At almost any point, this crowd could probably have been dispersed. The number of people actively looking for trouble was very small indeed; the rest were merely at a loose end, uncertain which direction to go.

After another rush, another distant volley of tear gas, and so another panic, it looked as though someone wanted us to move. I wandered a few blocks south, up Granville Street, where I finally caught my first sight of the police: a small group of officers standing at the intersection of Granville and Smithe, who seemed at as much of a loss as to what to do as the crowd. Further up Granville, however, were more clouds of tear gas, prompting people to move back towards Georgia. We were now being gassed from two sides. If there was any particular direction that the police wanted us to move, it wasn't too obvious--and the small group I saw made no effort to tell us what to do. There seemed to be little if any coordination.



Meanwhile, someone set fire to a rubbish bin on Granville. As there was nobody to stop it or put it out, the fire burned merrily away. People took pictures. In fact, just about everyone had a camera out most of the time; later, I even saw someone holding up an iPad to get a record of events in front of a police line. I drifted back down the street. Shortly, another bin was alight, in front of London Drugs. Across the way, after an agonizingly long time, people at the front of the crowd by the Bay had finally managed to get in to the store and were raiding the perfumery department. A detachment of cops, I suddenly noticed, were hunkered down in the SkyTrain station opposite, making no moves to come out and deal with the disturbances. They had apparently decided to give up these few blocks of the downtown core, and let the store's private security guards take the brunt of any violence. Meanwhile, the tear gassing was surely provoking more bad feeling, and whenever the police helicopter, hovering up above, shone its searchlight in our direction people turned around and gave it the finger. In short, rather than preventing the trouble it felt rather that the police were provoking it.

It was now dark and I thought I'd start making my way home. It was unclear how to do this, though: there was no traffic and so no buses or taxis. I thought I'd walk East, try my luck with the SkyTrain if it was running, and if not I'd try to pick up a taxi in the nearby suburbs of Gastown or Yaletown. Heading down Georgia, though, I ran into a rather more significant police presence: the riot cops were now on the scene, some on horseback, standing in front of (but as far as I could see, otherwise doing nothing about) a rather larger street fire round the corner, on Richards. They charged the crowd a couple of times, pushing us up the street where another cordon of riot police prevented us turning East on Robson. Near the next intersection, there was another fire in an alley. A man ran to it with a fire extinguisher, trying to tackle the blaze. Nobody helped him out.



Meanwhile, the police had drawn back along Richards Street, making their previous charge seem rather pointless. Indeed, their various barricades obeyed no obvious logic, not least because it was easy enough to avoid them by slipping down an alley. The provided a fairly intimidating image, yes, not least because many of the cops had their weapons out. But they surely weren't making much of an impact on crowd management. One cordon put down their shields and started putting on their gas masks. I decided I'd seen what I wanted to see and had had enough of being tear gassed, so continued with my plan to head towards the Georgia Viaduct. Along the way I asked one of the policemen if the SkyTrain was still operating. He had no idea.

Walking along Georgia, towards the stadium, I came across more smashed windows (a Budget rental car office; a BMO bank) and two burned-out cars. I think these were the two vehicles that were making most of the TV news. I had earlier passed a bar in which people were happily drinking and watching on big-screen TVs the footage of what was supposedly going on outside. Again, however, it was completely safe on the streets: the only points at which I'd felt at all uncomfortable had been when we'd been tear gassed and/or charged by mounted and shield-waving riot cops. I passed the Queen Elizabeth Theatre and headed down Dunsmuir towards the SkyTrain station, which was indeed open, but my way was blocked by yet another cordon of riot police. They said I had to do around: so I went half a block, up an alley, and back again. It's as though the cops were actively making it difficult to leave downtown, for no obvious reason.

In contrast to their absence on the streets, the police were present in force at the SkyTrain stations, picking off people for questioning if they felt they looked suspicious. Again, this seems to have been their plan: to occupy the periphery and let a rather small section of downtown Vancouver riot, while they lobbed in the odd tear gas canister and observed from the sides and on high. It seems obvious to me that this made things much worse, rather than better: it did nothing to stop the violence, and criminalized the whole crowd, succeeding only in irritating the vast majority of people, who were mere bystanders hanging out because there was little else to do. Frankly, I'm surprised that the disturbances weren't worse; most of the crowd behaved remarkably well, considering that from almost the outset the forces of law and order had decided to treat them as though they were really, as the media alleged, some kind of mob.

Of course, it's easier to portray the people on the streets as a mob, and blindly to cheer on the police, than to think about the violence with any kind of nuance or self-reflection. This demonization of the post-game violence is no doubt a safe outlet for the pent-up energy of so many disappointed Canucks fans: they have a target for their frustration, and they can feel so very civilized in expressing their anger. It's easier to grab this moral high ground, to claim that the so-called rioters do not represent Vancouver, than to stop and consider the ways in which violence is engrained in this sport on whose bandwagon they are hitched, or the conditions that gave rise to the post-game disturbances--and the many ways in which it could have been avoided. But let's give these concerned citizens some slack. They need their moment of mindless outrage, too.

Republished at the Tyee.

postcoloniality

If there is a guiding principle to Latin American postcoloniality, it is surely that which is encapsulated in Juan Bautista Alberdi's famous phrase, "Gobernar es Poblar": "To Govern is to Populate." As the Argentine jurist put it in Bases y puntos de partida para la organización política de la República Argentina, a book which outlines the structure of a future constitution of the country, the point of this maxim is to ensure that the constitution is not empty: "What name would you give a country, or what name would it deserve, if it comprised two-hundred thousand leagues of territory and eight-hundred thousand inhabitants? A desert. And what name would you give to the Constitution of such a country? The Constitution of a desert. Well, that country is the Argentine Republic, and whatever its Constitution may be, for years it will be nothing more than the Constitution of a desert" (525-526) Hence the exhortation to immigration, and not just any immigration, as Alberdi was at pains to explain even years later: "To populate is to enrich when you people the country with folk who know what they are doing when it comes to industry and who are accustomed to work that is productive and enriching. To populate is to civilize when you people the country with civilized folk, that is, with settlers from civilized Europe. That is why I have said in the Constitution that the government should encourage European immigration. But to populate is not to civilize, indeed instead it leads to brutishness, when one peoples the country with Chinese or Indians from Asia, or with blacks from Africa" ("Gobernar es Poblar" 271). Population has a qualitative aspect, as well as a quantitative one. It matters who or what constitutes the population, who or what gives flesh or life to the constitution.

In the first place, Alberdi's remarks indicate clearly that at least from the standpoint of those who charged themselves with envisaging the constitution of the new Republics that resulted from independence from Spain, Latin American postcoloniality involved less the region's decolonization than its recolonization. Argentina, Alberdi tells us, has still yet to be properly colonized; it needs to be colonized again, but now on the North American model, rather than along Spanish lines. Settler colonialism was to replace administrative hierarchy, wiping out the rigid division between a ruling caste on the one hand, whose roots were not truly in the country, and a vulgar mass on the other hand, who lacked all social or political responsibility. For in the second place, it is clear also that the act of population, for Alberdi, also implied the process of forming a people. "Gobernar es poblar" could equally be translated as meaning "To govern is to construct a people." Only the presence of a people would ensure that the new republic's constituted power was more than mere facade, deserted and empty.

And so the history of Latin American populism begins: as the injunction to construct a people that would give life to the otherwise hollow institutions of the new Republic. The people are never separate from constituted power; indeed, it is the architects of the constitution who dream them up and call them forth to take their (supposedly) rightful place. The problem, of course, is that the region is hardly in fact unpopulated. Nobody believes for instance that Argentina is truly a desert, truly devoid of population: Domingo Sarmiento would provide, in Facundo, what is in some surprising ways a remarkably sensitive anthropological account of at least some of the human settlement that already occupied the Argentine pampa, the uncivilized and (quite literally) unsettling gaucho who were an obstacle to true settlement, proper settler colonialism. The fiction of a terra nullius is always self-consciously just that: a fiction. And elsewhere in Latin America (Mexico, Peru, and so on), the notion that the territory was mere "desert" was always much more untenable still. The problem was that the population was not yet a people, no more than Asian or African immigrants could ever (in Alberdi and others' eyes) constitute a people and redeem the deserted constitution. The pre-existing population of Latin America were, rather, variously an unformed mass, barbarous hordes, or recalcitrant and atavistic Indians whose principle of (dis)organization did not fit easily with the political organization imagined for the postcolonial settlement. So the history of Latin American populism is not merely that of calling forth a people to flesh out the constitution: in recolonizing the territory, claiming it back in the name of the new Republics, the framers of political order would also have to deal with the multitude that always already precedes them.

The basic trope of populist rhetoric invokes what is apparently a primordial social division. Indeed, as Yves Mény and Yves Surel indicate, we can define populism precisely by its rhetorical maneuvers: first, it demarcates a fundamental cleavage between "the top and the bottom, the rich and the poor, the rulers and the ruled," in short, between "the good, wide, and simple people" and "the corrupt, incompetent, and interlocking elites"; second, "elites are accused of abusing their position of power instead of acting in conformity with the interests of the people as a whole"; and third, populism then insists that "the primacy of the people has to be restored." Direct democracy is encouraged: "The ideal populist political system comes close, at least on paper, to a 'pure' democratic regime where the people are given the first and final word" (Mény and Surel, 12, 13). So populism combines: a framework of an overriding distinction between people and elite; an analysis that presents this distinction as antagonism rather than mere difference; and a gesture of solidarity with the people, against the elite. And yet we will never fully understand the populist impulse if, like so many and not least Ernesto Laclau in his celebrated analysis, we are content simply to trace its rhetorical gestures, its apparent antagonisms and solidarities. For populism is, in the end, the attempt to construct political unity by positing the people as the basis of political legitimacy, and therefore by displacing or conjuring away a pre-existing multitude. The populist sleight of hand consists in recasting the multitude as people while at the same time presenting itself as somehow anti-institutional and progressive; in short by appropriating and converting constituent into constituted power.

And this, ultimately, is the history of Latin American postcoloniality, which is therefore fundamentally structured by populism even in those periods or places where populist movements are in abeyance, seem not to have the upper hand, or even appear to be definitively absent. From the nineteenth century to the present, with rare exceptions (and the neoliberal period of the 1980s and 1990s may arguably be one of those), governance in Latin America has involved the projection of unity in the face of the legacy of a Spanish colonial regime that had always been content (not least in its division between creole and Indian republics) to live with difference and duality if not multiplicity. Latin American postcoloniality has been an attempt to undo the basic structures of Spanish imperialism while preserving its constituent institutions (as well, of course, as its class and racial privileges) by recasting them along North American lines as somehow by (if not for) the people. To this end, it has projected a whole series of spurious hegemonies of integration, mestizaje, development, and so on, of which classical populism has merely been the most successful (perhaps because it was its purest incarnation) if only at the same time its most miserable failure. For the rock on which this project has founded has been the continual insistence of the multitude, the fact that the dream of a wholesale neocolonial resettlement could only ever be wishful thinking. The multitude has ensured that constituted power in postcolonial times has remained unsettled, hollow and deserted.


works cited

Alberdi, Juan Bautista. Bases y puntos de partida para la organización política de la República Argentina. Obras completas. Vol. 3. Buenos Aires: La Tribuna Nacional, 1886. 371-558.
-----. "Gobernar es Poblar." Escritos póstumos de J. B. Alberdi. Vol. 8: América. Buenos Aires: Cruz Hermanos, 1899. 266-276.
Mény, Yves, and Yves Surel. "The Constitutive Ambiguity of Populism." Democracies and the Populist Challenge. Ed. Yves Mény and Yves Surel. Basingstoke: Palgrave, 2002. 1-21.