The Student Strike: The Dangers of Judicialization

Thursday, April 5, 2012

Source: Juripop

The Quebec student strike movement against the increase in tuition fees has recently taken a turn. Many are seeking court injunctions. Be it the CEGEP in Alma or the Universities of Laval or Montreal, the requests have all had the same goal; either to stop the strike, or hinder political tactics used by students. This is how certain students have attempted to forbid picketing, forcing professors to give their courses no matter the number of students present relative to those on strike, sticking label of ‘illegality’ of sorts to certain actions undertaken by strikers. As leaders of an organisation that defends, notably, the interests of certain student associations, we cannot but oppose this recent tendency that could have negative major repercussions on the right to protest and on the freedom of expression in Quebec and Canada.

Firstly, it is an illusion to try and work towards an absolute homogeneity of opinion among Quebec’s student population. Differences in points of view have been apparent since the beginning, reflecting the diversity of the democratic process in our colleges and universities. The opposite would be disturbing. Furthermore, associations have the authority to debate and to reflect diverging opinions and are the only ones that can control students’ right to picket.

What is most disturbing, however, is when the judicial authorities, which are normally politically benign, are used to pressure a movement whose only tool is the capacity of students to ‘boycott’ its courses.

Since the very beginning of the movement, Quebec society has recognised in it a popular uprising that has not been without precedence, despite its unusually large size. Essentially pacifist, creative in its tactics, the present unlimited general strike is not a new phenomenon. The rules of the game have been established since the first solidarity movements, originally more associated with the labour movement. They are simple rules and their respect by the primary players can determine the success or failure of democratic action.

It is therefore preferable to be wary of using the courts in the context of a movement such as this one. As a watch dog of democracy, the judiciary must demonstrate reserve vis-à-vis popular movements which occur only when other democratic options, such as electoral pressures, have failed. Judges have demonstrated considerable restraint in their response to the demands for injunctions that have been submitted to them, generally avoiding the forbidding of picketing, or expressing opinions about the nature of the strike or ‘boycott’. For the most part, they have limited their judgments to the particular situations that are presented to them, falling back on the principle of uninhibited access to the institution of the university.

At UQAM, for example, administration and students worked out an agreement so as to not prevent the movement of striking students, while Judge Godbout, in the case of Laurent Proulx at Université Laval, presented a decision that changed absolutely nothing to the situation that previously existed. For a case at the University of Montreal, the judge simply rejected outright the demands of the student who presented the injunction request. The only judgment handed down that went as far as to forbid picketing was at the Cégèp Alma. Our organisation’s lawyers have since demonstrated, many times, the faults in this judgment that uselessly amputates students’ right to free speech. Furthermore, the judgment handed down in the case of Université Laval does not reiterate any of the elements of the Cégèp Alma decision, although it is more detailed and complete in comparison.

However, what will happen if court action becomes more common? While nothing prevents just any party to demand a request for an injunction to end picketing, what will be the impacts on student democracy, or on democracy in general? If we compare this to labour negotiations, it is not for nothing that the rules for conflicts between workers and management have been determined outside of the courtroom. It is also not for nothing that the term ”illegal strike” is only used in extraordinary cases. These norms exist to ensure that people can demand their collective rights without fearing a descent into chaos or provoking violence between students and workers of differing opinions. An ‘illegal strike” for those who are defending a legitimate right gives the impression that there is nothing to lose, and that their actions will not be recognised by the state. Resorting to more radical actions is the only option left in an attempt to attract the public’s attention and to rally public opinion in their favour. Most would agree that this only works on rare occasions, and that all of society benefits when freedom of speech can be exercised peacefully.

Restraining the right to picket and to protest via the courtroom must be avoided as much as possible. It is not the integrity of our tribunals with regard to the requests that are submitted to them that is questioned, but that their use brings with it the weakening of the balance inherent in democratic processes, all the while giving an undeserved negative reputation to the movement in the public’s eye. Our involvement and commitment is out of our respect for democracy and pacifism, which are the only means with which a group can earn the required legitimacy to back up its demands.

Translation: Travis Ahearn
Source: Grève étudiante: les dangers de la judiciarisation

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