How Quebec's opposition managed to keep the Legault government in check

Since the ancient Roman republic, democracies have recognized the need to occasionally suspend their usual procedures and give leaders exceptional powers in order to deal with emergencies.

Unshackled from their usual restrictions, leaders could take the wide-ranging action needed to save the democracy from whatever disaster loomed — be it war, civil unrest or plague. 

When the disaster had passed, the normal balance of power could resume. This, at least, is the reasoning that informs the federal Emergencies Act and its predecessor, the War Measures Act: sometimes you need to put democracy on hold to avoid an even bigger crisis. 

More recently — especially since Sept. 11, 2001 — political scientists, legal scholars and human rights advocates have worried about the reluctance of governments to relinquish temporary emergency powers they have claimed for themselves.

To borrow a phrase from the Italian philosopher Giorgio Agamben, the tendency in modern states is for "the norm to become indistinguishable from the exception."  

Bill 61, tabled on June 3 by the Quebec government, exposed the province to this danger.

Ostensibly a stimulus package, Bill 61 sought to suspend normal checks and balances on government power for an indeterminate amount of time.

The emergency powers in Quebec's Public Health Act are already extremely broad. It is under these powers, for instance, that police are able to hand out heavy fines for failing to respect distancing guidelines.

But the emergency powers must be renewed either every 10 days by executive order, or every 30 days if passed by the legislature — a mechanism meant to ensure these illiberal dispositions aren't used longer than strictly necessary. 

In the original provisions of Bill 61, the Coalition Avenir Québec government sought to remove the time limit to the extraordinary powers it's had available since declaring a public health emergency on March 13. 

In addition to extending the state of emergency indefinitely, Bill 61 was to give the government the ability to bypass rules about awarding infrastructure contracts, and it weakened several environmental regulations.

Premier François Legault said his government needed these powers because there was an "urgency for us to put people to work."

Boring old parliamentary procedure

The current version of Bill 61 looks fairly different from what was tabled last week, thanks to more than a dozen amendments the government proposed on Thursday. 

Gone is the provision for an open-ended state of emergency, replaced with a proposal to extend the declaration to Oct. 1. Gone, too, is the sweeping power to grant some government contracts without tender.

So what happened in the week since the bill was tabled? Parliament is what happened. Boring, old legislative procedures that force the government to hear from stakeholders and experts before voting on a bill.

In testimony on Wednesday, the Barreau du Québec said the province's legal community is deeply concerned about the unlimited extension of emergency measures. 

"These wide-ranging measures need to have a counter-weight, one that strikes a balance between the routine rules provided by law and the exceptional measures the government could impose during a pandemic," said the head of the bar, Paul-Matthieu Grondin.

Quebec's ombudsman and a committee of anti-corruption experts both warned that by removing the tendering process for contracts, the government would create ideal conditions for dodgy deals and cost overruns. 

"The bill goes against all the best practices of sound management of public funds," said the expert committee, which was struck after the Charbonneau commission uncovered widespread criminal activity in the province's construction industry. 

Add to these concerns a growing list of angry columnists and particularly irate opposition parties — it quickly became clear to the government it had to make concessions.

Keeping exception from becoming the norm

The National Assembly adjourned Friday afternoon until Sept. 15, with a united opposition still refusing to pass Bill 61. 

Without the support of the opposition, the government could not move the bill from the committee stage to the floor of the National Assembly for a vote.

Despite the proposed changes, the opposition is still unsatisfied with the bill, which they argue is a power grab by the CAQ.

Among the other issues they've highlighted are its focus on the male-dominated construction industry and the nakedly partisan choice of the infrastructure projects the government wants to streamline.

Legault himself, in announcing the bill, acknowledged a majority of the projects would be in ridings held by his party in order to reflect his legislative majority.

That means Montreal — where the CAQ barely has a toehold — is only slated to get of two of the 48 new long-term care residences the government wants to build by the next election.

This, despite the fact that already crowded long-term care homes in Montreal have been among the hardest-hit by the pandemic.

By delaying the bill's passage, the opposition has derailed an attempt to concentrate greater power in the hands of the executive. 

In its original form, Bill 61 would have erased the line between norm and exception. The opposition successfully made an argument that in these extraordinary times, the normal rules still count for something.